United States v. Moore

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 24, 2011 Decided July 29, 2011

No. 05-3050

UNITED STATES OF AMERICA,

APPELLEE

v.

RODNEY L. MOORE, ALSO KNOWN AS RASOO,

APPELLANT

Consolidated with 05-3051, 05-3052, 05-3053, 05-3054,

05-3064

Appeals from the United States District Court

for the District of Columbia

(No. 1:00-cr-00157)

Stephen C. Leckar, appointed by the court, John Kenneth

Zwerling, Neil H. Jaffee, Assistant Federal Public Defender,

and Charles A. Murray argued the cause for appellants. With

them on the briefs were A. J. Kramer, Federal Public

Defender, and Deborah A. Persico, appointed by the court.

2

Leslie Ann Gerardo, Assistant U.S. Attorney, U.S.

Attorney’s Office, argued the cause for appellee. With her on

the brief were Ronald Machen, Jr., U.S. Attorney, Roy W.

McLeese III and Elizabeth Trosman, Assistant U.S. Attorneys,

and Angela M. Miller, Special Assistant U.S. Attorney.

Before: SENTELLE, Chief Judge, and ROGERS 1 and

KAVANAUGH, 2 Circuit Judges.

Opinion for the Court filed PER CURIAM.

Opinion concurring in part in Part I filed by Circuit Judge

ROGERS.

TABLE OF CONTENTS

I. BATSON ..................................................................................5

A. Batson Framework ..........................................................6

B. Strike-by-Strike Analysis ................................................9

II. STUN BELTS .......................................................................14

III. ANONYMOUS JURY............................................................21

IV. PROSECUTORIAL MISCONDUCT .........................................25

A. Opening and Closing Arguments ..................................25

B. Overview Witness .........................................................33

C. Cumulative Error ...........................................................47

V. RULE 404(b) EVIDENCE .....................................................50

VI. BRADY ...............................................................................52

VII. STATUTE OF LIMITATIONS ...............................................55

VIII. JOINDER .........................................................................61

1

Circuit Judge Rogers concurs in part in Part I, see infra

concurring opinion, and in part in Part V, see infra note 11.

2

Circuit Judge Kavanaugh does not join Parts IV.A.1 and

IV.A.2.

3

IX. CONFRONTATION CLAUSE ................................................62

X. JENCKS ACT .......................................................................73

XI. RELIGIOUS CONVERSION TESTIMONY ...............................75

XII. TESTIMONY OF STEVE GRAHAM ......................................77

XIII. DESTRUCTION OF EVIDENCE ..........................................81

XIV. MULTIPLE CONSPIRACIES INSTRUCTIONS ......................81

XV. MOORE’S CONVICTION FOR CONTINUING CRIMINAL

ENTERPRISE ............................................................................84

XVI. MERGER OF MOORE’S MURDER CONVICTIONS ..............86

XVII. EXCLUSION OF ANTOINE WARD CONFESSION ..............87

XVIII. SMITH’S CONVICTION FOR MURDER OF ANTHONY DENT

................................................................................................91

XIX. SMITH’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

................................................................................................94

XX. CONSPIRACY WITHDRAWAL INSTRUCTION ...................103

XXI. AIDING AND ABETTING INSTRUCTION ..........................105

XXII. SEVERANCE ................................................................113

XXIII. HANDY’S NEW TRIAL MOTIONS ................................117

A. Sufficiency of Evidence ..............................................119

B. Brady ...........................................................................121

XXIV. CONCLUSION .............................................................127

PER CURIAM: Six defendants appeal from judgments of

conviction in the district court on multiple charges, including

drug conspiracy, RICO conspiracy, continuing criminal

enterprise, murder, and other related charges in violation of

federal and District of Columbia laws. They assert a wide

variety of alleged errors covering, among other things,

evidentiary issues, both as to admission and sufficiency;

conduct of the trial; prosecutorial misconduct; and jury

instructions. Upon review, we conclude that most of the

asserted errors either were not erroneous or were harmless.

As to one category of issue involving alleged violations of the

Confrontation Clause of the Constitution, a Supreme Court

decision intervening between the trial and our consideration

4

of the case compels us to remand convictions of some drug

charges (Counts 126-138) for further consideration by the

district court in light of the Supreme Court’s opinion. We

also remand for further proceedings a claim of ineffective

assistance of counsel raised by appellant Smith (Counts 4 and

5). We vacate one murder conviction as to appellant Moore

that, as the parties agree, merges with another conviction

(Count 32).

***

According to the indictment in the district court and the

evidence of the United States at trial, during the late 1980s

and 1990s, appellants Rodney Moore, Kevin Gray, John

Raynor, Calvin Smith, Timothy Handy, and Lionel Nunn,

along with others, some of whom were also indicted but tried

separately, conspired to conduct and did conduct an ongoing

drug distribution business in Washington, D.C. In the course

of conducting that business, various of the co-conspirators

committed a wide-ranging course of violence including 31

murders. The United States obtained a 158-count superseding

indictment upon which the defendants were tried by a jury.

After a trial lasting over ten months, the jury returned verdicts

of guilty on several of the charges, including the drug

conspiracy, 21 U.S.C. § 846, the RICO conspiracy, 18 U.S.C.

§ 1962(d), continuing criminal enterprise (Moore and Gray),

21 U.S.C. § 848(a)-(b), murder, D.C. Code § 22-2401, -3202;

D.C. Code § 22-2101; 18 U.S.C § 1959(a)(1); 21 U.S.C.

§ 848(e)(1)(A); 18 U.S.C. § 1512, assault with intent to

murder (Moore and Gray), D.C. Code § 22-503, -3202, illegal

use of a firearm (Moore, Gray, Raynor, Handy, and Nunn), 18

U.S.C. § 924(c), distribution of cocaine base and heroin

(Gray), 21 U.S.C. § 841(a)(1), possession with intent to

distribute heroin (Raynor), id., and tampering with a witness

(Handy), 18 U.S.C. § 1512(b). The trial court entered

5

judgment imposing substantial criminal sentences generally

amounting to terms in excess of life imprisonment from

which the defendants now appeal.

Further details of the facts, evidence, and proceedings will

be set forth as necessary for the discussion of the issues raised

by appellants.

I. 3

The Constitution’s equal protection guarantee bars

prosecutors from using peremptory challenges to strike

prospective jurors on the basis of race. See Batson v.

Kentucky, 476 U.S. 79 (1986). In this case, although 9 of the

12 jurors were African-American, appellants argue that the

prosecution unconstitutionally used its peremptory challenges

to remove prospective jurors who were African-American.

The district court rejected appellants’ challenge. We affirm

the district court’s decision.

A Batson challenge proceeds in three steps: First, the

defendant must establish “a prima facie case of discriminatory

jury selection by the totality of the relevant facts about a

prosecutor’s conduct during the defendant’s own trial.”

Second, “the State [must] come forward with a neutral

explanation for challenging jurors within an arguably targeted

class.” Third, the “trial court then will have the duty to

determine if the defendant has established purposeful

discrimination.” Miller-El v. Dretke, 545 U.S. 231, 239

(2005) (alterations and internal quotation marks omitted). In

the district court, appellants argued that the prosecution’s use

of 34 peremptory strikes to remove African-Americans from

3

Circuit Judge Rogers filed a separate opinion concurring in

part in Part I.

6

the venire for regular jurors established a prima facie case of

discrimination. Accepting that the prima facie hurdle was

cleared, the district court required the prosecution to explain

each of its peremptory challenges of African-Americans.

After the prosecution provided those explanations, the district

court required further argument from both sides as part of

Batson’s final stage. The court allowed the defense counsel

to dispute the validity of each government explanation and

required the prosecution to individually respond to the

defense’s argument on each disputed strike. The court

actively engaged in the entire process, consulting its notes and

correcting and questioning counsel. At the conclusion of the

multi-hour hearing, the district court ruled that appellants had

not “established purposeful discrimination.” Miller-El, 545

U.S. at 239; see also Purkett v. Elem, 514 U.S. 765, 768

(1995) (“[T]he ultimate burden of persuasion regarding racial

motivation rests with, and never shifts from, the opponent of

the strike.”).

In this court, appellants dispute the district court’s

conclusion that there was no Batson violation.

A.

Appellants’ challenge to the district court’s Batson

decision faces a demanding standard. “On appeal, a trial

court’s ruling on the issue of discriminatory intent must be

sustained unless it is clearly erroneous.” Snyder v. Louisiana,

552 U.S. 472, 477 (2008). The Supreme Court has

emphasized that the “trial court has a pivotal role in

evaluating Batson claims.” Id. The Court has explained that

the demeanor of the prosecutor exercising a challenged strike

is often “the best evidence of discriminatory intent.” Id.

(alterations omitted). The district court, unlike this court,

observed the prosecutor’s demeanor firsthand. Further, when

7

the asserted basis for a strike is a prospective juror’s behavior

in court, the trial court will have observed and evaluated that

juror’s demeanor as well. See id. For those reasons, the

Supreme Court has stated that “in the absence of exceptional

circumstances, we would defer to the trial court” in resolving

a Batson claim. Id. (alterations omitted); see also Hernandez

v. New York, 500 U.S. 352, 365-66 (1991) (plurality opinion).

Appellants argue that we should reject the district court’s

findings because the court itself did not individually discuss

each challenged strike on the record. Batson’s third step

requires trial courts to closely analyze the prosecutor’s

proffered reason for each disputed strike in light of all the

relevant circumstances. See Miller-El, 545 U.S. at 241-42,

251-52. The record here demonstrates that the district court

appropriately exercised its Batson responsibilities. The

district court required three rounds of argument on each strike

of an African-American juror: a prosecution opening in which

the government individually justified each strike; a defense

response disputing those government explanations; and a

prosecution reply to every defense argument. Throughout the

hearing, the district court questioned counsel, reviewed its

own notes, and corrected mistakes by counsel. The district

court then concluded, based on the arguments and its personal

observation of the prosecutors and of the prospective jurors’

demeanor, that the government’s race-neutral explanations

were genuine. Appellants cite no controlling precedent

requiring a trial court to render its decision in a strike-by-

strike format. Given the obvious thoroughness of the district

court’s application of Batson’s third step, we cannot conclude

that the lack of strike-specific findings creates the sort of

“exceptional circumstances” that would overcome our

deference to the trial court. Snyder, 552 U.S. at 477.

8

Moreover, the circumstances of this case seriously

undermine appellants’ claim. Nine of the 12 jurors seated in

this case were African-American. That jury composition

mirrored the make-up of the venire, which contained 68

African-Americans out of 90 persons in the pool from which

regular jurors were selected. Thus, while the prosecution

used many strikes to remove prospective African-American

jurors, that is largely explained by the fact that the jury pool

was predominately African-American. In addition, the

prosecutor’s strikes did not skew the racial composition of the

resulting jury. The circumstances here are a far cry from the

facts of cases in which the Supreme Court has found a Batson

violation. Cf. Snyder, 552 U.S. at 476 (all African-Americans

in jury pool struck by prosecution); Miller-El, 545 U.S. at

240-41 (10 of 11 African-Americans in jury pool after

dismissals for cause or by agreement struck by prosecution);

Batson, 476 U.S. at 100 (all African-Americans in jury pool

struck by prosecution).

Finally, in this case there are no extrinsic indicators of

racial discrimination of the kind found in successful Batson

challenges. For example, in Miller-El, a case in which the

trial occurred before the 1986 Batson decision, the Court

relied in part on the “widely known evidence of the general

policy of the Dallas County District Attorney’s Office to

exclude black venire members from juries.” Miller-El, 545

U.S. at 253. In contrast, the Supreme Court has explained

that cases where the stricken jurors are the same race as the

majority of victims and prosecution witnesses are unlikely

candidates for a finding of racial discrimination. See

Hernandez, 500 U.S. at 369-70 (plurality opinion). The

overall facts and circumstances of this case thus do not

support appellants’ claim of intentional discrimination. See

Snyder, 552 U.S. at 478 (“[I]n reviewing a ruling claimed to

9

be Batson error, all of the circumstances that bear upon the

issue of racial animosity must be consulted.”).

B.

Although the circumstances of this case strongly suggest

that the prosecution did not use its peremptory strikes to

discriminate on the basis of race, those facts alone are not

dispositive. The dismissal of even a single prospective juror

on the basis of race violates equal protection principles. See

Snyder, 552 U.S. at 478. We therefore review each of the 11

strikes challenged by appellants. Cf. Bond v. Beard, 539 F.3d

256, 270 (3d Cir. 2008) (finding overall circumstances

suggest no Batson violation, but nonetheless conducting

analysis of each strike to resolve Batson claim).

Of the 11 strikes challenged on appeal, appellants

objected to the following seven strikes in the district court.

We review the district court’s findings on those seven strikes

for clear error. Snyder, 552 U.S. at 477. Because the district

court empanelled an anonymous jury in this case, we identify

each prospective juror using the numbers assigned by the

district court.

2932: Among its concerns about this prospective juror,

the prosecution noted 2932’s statement that long delays in

bringing criminal cases to trial impaired witnesses’ memories.

The prosecution worried that 2932 would be suspicious of the

government’s case because this case involved long delay and

the government was relying on witnesses’ memories of long-

past events. Appellants do not rebut the plausibility of that

specific, race-neutral objection or show that any other seated

juror worried about the effect of delay on witnesses’

memories.

10

3559: The prosecution explained that it struck 3559 on

the basis of his youth. The government’s statement that it

struck every juror age 22 or younger, regardless of race,

remains unrebutted.

3872: The prosecution stated that it struck 3872 for

appearing disrespectful in court. Appellants cite trial

transcripts in an attempt to demonstrate that seated white

jurors might have behaved just as inappropriately. This is an

instance in which “[a]ppellate judges cannot on the basis of a

cold record easily second-guess a trial judge’s decision.” Rice

v. Collins, 546 U.S. 333, 343 (2006) (Breyer, J., concurring);

see Snyder, 552 U.S. at 483. We cannot tell from the record

whether there was anything inappropriate about those seated

jurors’ demeanors. And contrary to appellants’ assertion,

Snyder does not establish a rule that trial courts must make

specific findings about demeanor. Cf. Thaler v. Haynes, 130

S. Ct. 1171 (2010). Because appellants have not

demonstrated any “exceptional circumstances” that require

otherwise, we defer to the district court’s finding on an issue

that is “peculiarly within a trial judge’s province.” Snyder,

552 U.S. at 477.

4463: The prosecutor explained that 4463 appeared

unstable in court and that “his voir dire indicated numerous

answers that would make clear why the government opposes

this juror.” May 7, 2002 PM Tr. at 75. A quick review of

4463’s rambling statements, in which he detailed how his

brother had been unfairly framed for distribution of crack

cocaine, makes clear why a prosecutor would want to strike

4463, regardless of race. Appellants’ citation to a seated

white juror whose family also had drug problems is not

comparable. That juror calmly related the long-past problems

of his relatives, and expressly stated that his brother had been

dealt with fairly.

11

4730: The government claims to have struck 4730 in part

because 4730 was suspicious of law enforcement and unsure

that the death penalty should apply in Washington, D.C.

Appellants question the strength of 4730’s views on this

subject, but they point to no seated juror who expressed

reservations about law enforcement similar to 4730’s concern

about “rogue police officers,” and a “bad experience” with

law enforcement that “[l]eft a bad taste.” Apr. 5, 2002 PM Tr.

at 23-24. 4730’s views on law enforcement provided a race-

neutral explanation for the prosecution’s decision to strike

her.

5698: This prospective juror was a former special police

officer whom the prosecutor claimed to have struck for being

“quiet,” “submissive,” and possibly not “strong enough” to be

an effective juror. May 7, 2002 PM Tr. at 42. To the extent

we can discern demeanor from a written transcript, 5698’s

colloquy with the district court suggests a passive, uncertain,

and quiet person. And passivity can be a plausible, race-

neutral reason to exclude a juror. See United States v.

Changco, 1 F.3d 837, 840 (9th Cir. 1993). Appellants may be

correct that former law enforcement officers are often

desirable jurors from the prosecution’s perspective. But that

does not bar the prosecution from dismissing any particular

juror because the government believes her personality would

make her a less than desirable juror from the prosecution’s

perspective.

5773: The prosecution claimed to have struck 5773 due to

5773’s concerns about imposing the death penalty.

Appellants respond that seated white jurors appeared equally

hostile to the death penalty. We disagree. As to the seated

white juror whose views come closest to matching 5773’s, he

repeatedly followed questions about his ability to impose the

death penalty with notations such as “I would try to abide by

12

the Court’s instruction, not my personal belief.” By contrast,

5773’s doubts about the death penalty were sufficiently

salient that he used his questionnaire to indicate that he had

concerns about his ability to be a fair juror. The prosecution

thus had legitimate grounds to suspect that 5773 would be

significantly more hesitant to impose the death penalty than

the seated white juror.

In the district court the defense did not object to the

prosecution’s strike of the following four prospective jurors.

The district court’s rulings on these strikes are therefore

reviewed only for plain error. See, e.g., United States v.

Charlton, 600 F.3d 43, 50 (1st Cir. 2010).

866: The prosecution explained that it struck 866 because

866 “had a relative who had been convicted of murder.” May

7, 2002 PM Tr. at 35. The record shows that 866’s nephew,

with whom she was personally close, murdered his wife and

was then imprisoned, where 866 believes he was abused by

his guards. Appellants’ attempts to minimize the potential

effect of 866’s experiences with murder convictions and to

draw comparisons to seated jurors who had relatives

convicted of much less serious crimes are not convincing.

2486: The prosecution struck 2486 “based on things she

said about her prior jury service . . . as well as other

statements in her questionnaire.” May 7, 2002 PM Tr. at 39.

2486’s questionnaire and the transcript of what she said

during voir dire refer to her participation in an acquittal

during her prior jury service, which she attributed to the

prosecution’s lack of direct evidence. The record also

demonstrates 2486’s reticence to impose the death penalty

and suspicion of law enforcement competence. Appellants

now contend that the prosecutor’s mere reference to 2486’s

statements and questionnaire responses is too vague to qualify

13

as a credible, race-neutral explanation. But the prosecution

had no reason to give a more detailed explanation, because

appellants did not question this strike in the district court.

Given that the record referenced by the prosecutor does in fact

reflect an objective basis for the prosecutor’s proffered

explanation, we cannot say that the district court plainly erred

in finding no racial motivation for this strike.

3143: The prosecution claims that it struck 3143 because

3143 demanded a higher standard of proof to impose the

death penalty and was generally hostile to the death penalty.

On appeal, appellants offer a lengthy comparison of 3143’s

views to those of seated white jurors. The government

attempts — with considerable success — to distinguish the

seated jurors’ views from 3143’s, but the government also has

a more telling point: It is difficult to say that the district court

plainly erred in not noticing similarities between those seated

jurors and 3143, given that none of the six defendants’

lawyers noticed those similarities during jury selection. We

reject appellants’ challenge to the prosecution strike of 3143.

3505: The prosecution explained its strike of 3505 based

on 3505’s statements in her questionnaire and during voir dire

that the death penalty is “never justified.” Appellants do not

argue either that the prosecution’s explanation is false or that

other seated jurors had the same views. Appellants argue

only that 3505 also claimed to be able to set her personal

views aside. That in no way implies that the prosecutor

considered race in striking 3505. This challenge could not

succeed under any standard of review, much less under plain

error review.

In short, appellants have failed to sufficiently undermine

the government’s race-neutral explanations for its peremptory

strikes of prospective African-American jurors. Moreover,

14

the circumstances of this case strongly suggest that the

prosecution did not discriminate on the basis of race.

Especially given the deferential standard under which we

review challenges to the district court’s decisions on this

issue, we reject appellants’ Batson claims.

II.

A week before trial began, the government filed a motion

requesting that the district court order appellants to wear stun

belts during trial. Gray filed written opposition to the motion

and, at a pretrial hearing five days later, all appellants

opposed the motion orally. Feb. 27, 2002 PM Tr. at 36-52.

The court granted the government’s motion, id. at 57, and

issued a memorandum opinion in support of its order, see

United States v. Gray, 254 F. Supp. 2d 1 (D.D.C. 2002).

Appellants contend that the district court violated their due

process rights when it ordered them to wear stun belts at trial.

The right to a fair trial is a fundamental liberty secured by

the due process guarantee of the Fifth and Fourteenth

Amendments. Estelle v. Williams, 425 U.S. 501, 503 (1976);

In re Murchison, 349 U.S. 133, 136 (1955). Invoking this fair

trial right, the Supreme Court has stated that certain

government practices during criminal trials prejudice

defendants because they offend three “fundamental legal

principles,” Deck v. Missouri, 544 U.S. 622, 630 (2005): (1)

that “the criminal process presumes that the defendant is

innocent until proved guilty,” id.; (2) that “the Constitution, in

order to help the accused secure a meaningful defense,

provides him with a right to counsel,” id. at 631; and (3) that

“judges must seek to maintain a judicial process that is a

dignified process,” id. When a government practice is

prejudicial because it either inherently or in a particular

defendant’s case offends these principles, the Court has

15

forbidden district courts from utilizing the practice unless it is

justified by an essential state interest, such as courtroom

security or escape prevention, specific to the defendant on

trial. See, e.g., Deck, 544 U.S. 622; Holbrook v. Flynn, 475

U.S. 560 (1986); Estelle, 425 U.S. 501.

Accordingly, the Supreme Court has held it is inherently

prejudicial to require a criminal defendant to wear jail garb

during trial and therefore, because no state interest is ever

served by the practice, it violates his fair trial right. See

Estelle, 425 U.S. at 505, 512-13. Similarly, the Court has

held that visibly restraining a criminal defendant during either

a criminal trial or the penalty phase of a capital prosecution is

inherently prejudicial and thus is permissible only when

justified by an essential state interest specific to the defendant.

See Deck, 544 U.S. at 629. In contrast, the Court has held that

deployment of security personnel in a courtroom is not

inherently prejudicial, and is thus permissible, regardless of

the state interest served, as long as it is not actually prejudicial

in a particular case. See Holbrook, 475 U.S. at 568-69, 572.

Applying these lessons to the case before us, if the use of

stun belts to restrain criminal defendants at trial either is

inherently prejudicial or in this case was actually prejudicial

to the defendants, the district court had the obligation to

determine whether the belts were justified by an essential

governmental interest specific to the defendants on trial.

Appellants, who argue that stun belts are inherently

prejudicial, contend that the district court failed to meet this

obligation for three reasons. First, they assert that the district

court failed to make an individualized determination of

whether a stun belt was needed to restrain each defendant.

Second, they argue that the district court was required but

refused to hold an evidentiary hearing to resolve factual

disputes they raised concerning the visibility of, necessity for,

16

and alternatives to the stun belts. Finally, appellants maintain

that the district court erroneously failed to consider how the

stun belts would affect appellants’ right to communicate with

counsel and assist in their own defense. On review, we hold

that, even assuming that stun belts are inherently or were

actually prejudicial, the district court did all that was required

of it.

In review of a district court’s authorization of an

inherently or actually prejudicial governmental practice, we

find error only when the district court has abused its

discretion. See Deck, 544 U.S. at 629 (“[T]he Fifth and

Fourteenth Amendments prohibit the use of physical restraints

visible to the jury absent a trial court determination, in the

exercise of its discretion, that they are justified by a state

interest specific to a particular trial.”); United States v.

Wardell, 591 F.3d 1279, 1293 (10th Cir. 2009); United States

v. Durham, 287 F.3d 1297, 1304 (11th Cir. 2002).

It is true, as appellants say, that prior to authorizing the

use of an inherently or actually prejudicial government

practice, the district court must consider each defendant

before him and determine whether the practice serves an

essential interest in the particular trial at hand. Deck, 544

U.S. at 624, 633; Holbrook, 475 U.S. at 568-69. However,

the district court did just this. In a memorandum opinion, the

court carefully analyzed the following factors in its decision

to require stun belts:

1) the seriousness of the crimes charged and the severity

of the potential sentences; 2) the numerous allegations of

threats of violence made by the defendants against

witnesses; 3) previous guilty pleas or convictions of a

substantial number of the defendants to prior gun charges

and/or violent crimes; 4) allegations of gang activity, and

17

the likelihood that associates or rivals of the alleged gang

may be present at the trial; 5) the opinion of the U.S.

Marshal for this District, particularly as it relates to

knowledge of security in this courthouse and of cases of

this nature; 6) potential prejudice to the defendants from

the use of the stun belts; 7) likelihood of accidental

activation of the stun belts; 8) potential danger to the

defendants if the belts are activated; 9) the availability and

viability of other means to ensure courtroom security; 10)

the potential danger for the defendants and others present

in the courtroom if other means are used to secure the

courtroom; and 11) the existence of a clear written policy

governing the activation of stun belts worn by defendants.

Gray, 254 F. Supp. 2d at 4. Finding that “[e]ach of the eleven

factors” militated in favor of imposing stun belts, the district

court concluded that the use of stun belts would “best

preserve . . . the security of the courtroom.” Id. at 4-6.

The district court’s memorandum opinion demonstrates

that it considered the security concerns presented by the

particular defendants at trial before making the determination

that stun belts were appropriate. It thoroughly examined

factors relevant to each defendant and, in the exercise of its

broad discretion, made a determination based on those factors.

That appellants shared many of the same characteristics (e.g.,

they were charged in the same conspiracy, they all faced

either the death penalty or life sentences) does not mean the

district court failed to consider them individually. And that

the district court reached a result with which the defendants

disagree does not mean it abused its discretion.

We also reject appellants’ contention that the district court

was obligated to hold an evidentiary hearing. When making

the discretionary decision whether to authorize an inherently

18

or actually prejudicial government practice at trial, “[a]

formal evidentiary hearing may not be required, but if the

factual basis for the extraordinary security is controverted, the

taking of evidence and finding of facts may be necessary.”

United States v. Theriault, 531 F.2d 281, 285 (5th Cir. 1976);

cf. United States v. Law, 528 F.3d 888, 903-04 (D.C. Cir.

2008); United States v. Microsoft Corp., 253 F.3d 34, 101

(D.C. Cir. 2001) (holding that district courts are not required

to conduct evidentiary hearings prior to issuing relief in civil

cases when “there are no disputed factual issues regarding the

matter of relief”). Although the defense pointed out that due

to the short notice of the hearing the evidence before the

district court about how stun belts functioned was provided

entirely by the government and there had “to be another side

of the story with respect to the proffers that [the government

has] made,” appellants did not allege any specific inaccuracy

or misrepresentation. Feb. 27, 2002 PM Tr. at 44-46. While

appellants disputed the government’s contention that other

measures would be inadequate to secure the courtroom, id. at

49, this dispute is, in essence, the ultimate question the district

court must answer. See Durham, 287 F.3d at 1304 (“[A]

decision to apply leg shackles to the defendant ‘must be

subjected to close judicial scrutiny to determine if there was

an essential state interest furthered by compelling a defendant

to wear shackles and whether less restrictive, less prejudicial

methods of restraint were considered or could have been

employed.’” (quoting Elledge v. Dugger, 823 F.2d 1439, 1451

(11th Cir. 1987) (per curiam))). Appellants must make a

more specific factual challenge.

The only specific factual matter relevant to the district

court’s determination about which the government and

appellants meaningfully disagreed was whether the stun belts

would be visible. Feb. 27, 2002 PM Tr. at 38, 44, 56-57.

However, in its memorandum opinion, the court accepted

19

appellants’ contention that there was some risk the stun belts

would be visible. The court then specifically ordered

precautions to reduce the visibility of the belts. The opinion

states: “Although the Court does not believe that it is likely

that any juror will see the stun belts, the Court will take

precautions to minimize prejudice to the defendants. The

defendants will be brought into the courtroom before the jury

is brought in, and will be escorted from the courtroom after

the jury has left.” Gray, 254 F. Supp. 2d at 4. Under these

circumstances, we hold that the district court acted within its

discretion when it declined to hold an evidentiary hearing.

Turning to appellants’ claim that the district court erred by

not considering the effect of stun belts on appellants’ ability

to confer with their counsel and participate in their defense,

we again find no error. As discussed above, whether wearing

a stun belt affects a criminal defendant’s ability to confer with

counsel and participate in his defense is one of the three

questions relevant to the determination of whether, before

authorizing such a restraint, a district court must first

determine whether it is justified by an essential governmental

interest specific to the defendant on trial. When the district

court made the appropriate findings to determine that the use

of stun belts was so justified in appellants’ case, the court

implicitly assumed that the belts did risk negatively affecting

appellants’ abilities in this way. It was not required to revisit

this question in its substantive decisionmaking process. We

also note that while appellants direct us to case law that warns

abstractly of the potential harm of stun belts, see, e.g.,

Durham, 287 F.3d at 1305-06, they have offered us no

evidence stun belts in any way affected their communication

with their counsel or their participation in their defense.

Moore also repackages appellants’ arguments that the

district court abused its discretion by authorizing stun belts

20

into an objection to the court’s refusal to grant his post-trial

motion for a new trial. Before the district court Moore argued

that he was entitled to a new trial because “a sufficient factual

predicate did not exist” to justify the district court’s

authorization of stun belts. Def. Moore’s Mot. for New Trial

at 2 (June 8, 2003). He also maintained that a new trial was

warranted because his stun belt was activated, outside the

presence of the jury. On appeal, Moore argues that he was

physically and psychologically injured by the activation of the

stun belt and that these injuries interfered with his ability to

communicate with his attorney and assist in his own defense.

Moore’s stun belt was activated on November 12, 2002,

while trial was ongoing but before trial had started on that

day. Nov. 12, 2002 AM Trial Tr. at 8. Defense counsel

reported the incident to the court and asked the court to

consider taking a break. Id. at 97. The court did so and, after

reconvening, announced that it had asked a nurse to examine

Moore and that the nurse had reported that Moore “fe[lt] that

the use of the device was unjustified,” but that he was

“physically . . . all right” and “was willing to go forward

today.” Id. at 98. Moore’s counsel did not challenge these

representations or otherwise object further. Id.

We reject Moore’s claims. That Moore’s stun belt was

activated does not undermine the district court’s reasoned

decision, which we have upheld, to require him to wear a stun

belt. Insofar as Moore now claims that the district court

violated his constitutional rights not by requiring him to wear

the belt but by continuing the trial after the belt’s activation,

we again find no error. As noted, the district court acceded to

the request for a break by Moore’s counsel, who never

disputed the representation by the nurse, who had examined

Moore, that Moore was ready to proceed with the trial.

21

III.

Appellants contend that the district court erred in

empaneling an anonymous jury insofar as the prospective

jurors’ names, addresses, and places of employment were

withheld. Our review is for abuse of discretion, despite

appellants’ contention that the de novo standard applies

because “constitutional principles are involved.” Appellants’

Br. at 73. The court rejected this view in United States v.

Childress, 58 F.3d 693 (D.C. Cir. 1995), a case concerning (in

part) whether “the use of anonymous juries violates the

Constitution,” id. at 702 (emphasis added), because

“[d]ecisions on . . . anonymity require a trial court to make a

sensitive appraisal of the climate surrounding a trial and a

prediction as to the potential security or publicity problems

that may arise during the proceedings,” id.

In United States v. Edmond, 52 F.3d 1080 (D.C. Cir.

1995), the court advised that “[i]n general, the [district] court

should not order the empaneling of an anonymous jury

without (a) concluding that there is a strong reason to believe

the jury needs protection, and (b) taking reasonable

precautions to minimize any prejudicial effects on the

defendant and to ensure that his fundamental rights are

protected.” Id. at 1090 (first alteration in original) (citation

and quotation marks omitted). In determining whether such

protection is warranted, the court has found its analysis aided

by five factors identified by the Eleventh Circuit:

(1) the defendant’s involvement in organized crime,

(2) the defendant’s participation in a group with the

capacity to harm jurors, (3) the defendant’s past

attempts to interfere with the judicial process, (4) the

potential that, if convicted, the defendant will suffer a

lengthy incarceration and substantial monetary

22

penalties, and (5) extensive publicity that could

enhance the possibility that jurors’ names would

become public and expose them to intimidation or

harassment.

Id. at 1091 (quoting United States v. Ross, 33 F.3d 1507, 1520

(11th Cir. 1994)). Finding that all five factors were satisfied

here, the district court granted the government’s motion for an

anonymous jury. As justification, the district court noted that

appellants were charged in the superseding indictment with

participating in a drug and RICO conspiracy that involved

multiple acts of violence using firearms, in addition to

threatening potential witnesses and preventing individuals

from cooperating with law enforcement, and that if convicted

appellants faced the maximum penalty of death or life

imprisonment. Pointing to two Washington Post articles, the

district court noted that this case had garnered media attention

capable of increasing the potential danger to jurors. See

United States v. Gray, No. 00-cr-157, at 12-13 (D.D.C. Feb.

7, 2002) (resolving pretrial motions).

Appellants challenge the district court’s decision to

empanel an anonymous jury on three grounds. None is

persuasive. First, appellants maintain that the district court’s

decision was unfounded because the superseding indictment

did not allege any history of juror intimidation. This

argument misunderstands and too narrowly construes the

requirements set forth in Edmond. As the court explained,

“we do not believe such evidence [of jury tampering] is

necessary in every case. Rather, we think the District Court

. . . reasonably could have ascertained a threat to jurors from

the charges in the indictment.” Edmond, 52 F.3d at 1091.

Here, the particular allegations of “multiple acts of violence to

prevent individuals from contacting law enforcement,” Gray,

No. 00-cr-157, at 13 (Feb. 7, 2002), were sufficient, viewed in

23

context, for the district court to be concerned about

appellants’ capacity to harm jurors and interfere with the

judicial process. See Edmond, 52 F.3d at 1091-92. As

support, the district court cited the factual findings set forth in

its November 15, 2001 memorandum regarding appellants’

history of interfering with the judicial process, in resolving

various discovery and evidentiary disclosure requests. See

United States v. Gray, No. 00-cr-157, at 5-12 (D.D.C. Nov.

15, 2001).

Second, appellants maintain that media interest in this

criminal prosecution would not endanger jurors’ safety. The

district court identified two Washington Post articles covering

appellants’ case as a prosecution brought against “Murder,

Inc.” Both articles appeared on the front page of the Metro

section and described the number of alleged murders as

historic and unprecedented. Such evidence of “initial media

interest,” United States v. Wilson, 160 F.3d 732, 746 (D.C.

Cir. 1998), in a high-profile prosecution of a major drug

conspiracy involving multiple defendants over a substantial

period of time and alleged purposeful and random acts of

murder supports the district court’s decision.

Third, appellants suggest that the district court failed to

take reasonable precautions to minimize any potential

prejudice to them as a consequence of juror anonymity. In

granting the motion for an anonymous jury, the district court

advised that it would “use a questionnaire and extensive voir

dire to examine the jurors’ backgrounds” and, in addition to

instructing jurors that appellants were presumed innocent

until proven guilty, “provide a neutral explanation to the

jurors regarding their anonymity.” Gray, No. 00-cr-157, at 13

(Feb. 7, 2002). These precautions were, in fact, taken. A

combination of instructions downplaying the significance of

jurors’ anonymity and a lengthy voir dire questionnaire can

24

adequately safeguard a defendant’s fundamental rights. See,

e.g., Childress, 58 F.3d at 701-02; Edmond, 52 F.3d at 1092-

93. Here the neutral instruction, set forth in the jury

questionnaire, 4 informed jurors that they would meet at

specific locations to be escorted to and from the courthouse

“for [their] convenience as well as to assure both the

government and the defense that no one has attempted to

contact, communicate, or influence the jury.” For voir dire,

the 46-page jury questionnaire — at least double the length of

the jury questionnaires that passed muster in Childress and

Edmond — provided appellants with “a broad variety of

personal information, including the quadrant of the city in

which jurors resided, their educational history, marital status,

military service, employment status and work description,

their spouse’s and children’s employment, and their

experience with crime, drugs, and law enforcement.”

Edmond, 52 F.3d at 1092. This sufficed “to compensate for

the information denied by juror anonymity” because “[i]t

elicited information . . . far more extensive and detailed than

the generalizations appellants might have drawn from jurors’

mere names and addresses.” Id. Appellants have pointed to

no particular example of prejudice.

Accordingly, we hold that the district court, having made

the necessary findings under the Edmond factors, did not

4

Although appellants note in the “background” section of their

brief that the district court’s instruction was not given orally or

repeated during the trial, appellants do not pursue this issue in their

argument section. We therefore have no occasion to consider

whether a written instruction that is not orally repeated thereafter

would alone be an adequate safeguard. See Am. Wildlands v.

Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008); FED. R. APP. P.

28(a)(9).

25

abuse its discretion in granting the government’s motion for

an anonymous jury.

IV.

Appellants raise numerous claims of prosecutorial

misconduct, including inflaming the passions and prejudices

of the jury, vouching for and bolstering the credibility of

witnesses, soliciting testimony to that effect, denying

appellants a presumption of innocence through elicitation of

improper opinion testimony, and violating appellants’ Sixth

Amendment right by introducing evidence that they

associated with and often sought the advice of legal counsel. 5

We have reviewed these claims and limit our discussion to

those having arguable merit, and concluded that even when

appellants’ claims are viewed cumulatively, they fail to show

a violation of their due process rights as would entitle them to

a new trial.

A. 6

Opening and Closing Arguments. Appellants contend that

the prosecutor’s opening argument to the jury was improper

and substantially prejudiced the trial proceedings by

interfering with the jury’s ability to properly assess the

evidence. Our review of allegedly improper prosecutorial

arguments is for substantial prejudice where the defendants

5

Appellants also incorporate their arguments relating to Brady

v. Maryland, 373 U.S. 83 (1963), and the federal bribery statute, 18

U.S.C. § 201(c)(2), which are addressed in Parts VI and XII,

respectively.

6

Circuit Judge Kavanaugh does not join Parts IV.A.1 and

IV.A.2.

26

lodged an objection, but we apply the plain error standard

where they failed to object. See United States v. Small, 74

F.3d 1276, 1281 (D.C. Cir. 1996); see also United States v.

Catlett, 97 F.3d 565, 573 (D.C. Cir. 1996). When, as here,

the alleged prosecutorial misconduct forms the basis for an

unsuccessful motion for a mistrial, our review of the district

court’s denial of that motion is for abuse of discretion. See

Small, 74 F.3d at 1284. This court has identified three factors

that guide the determination whether improper remarks in

closing and opening statements prejudiced a defendant so as

to warrant reversal, under either the substantial prejudice or

plain error standard: “(1) the closeness of the case; (2) the

centrality of the issue affected by the error; and (3) the steps

taken to mitigate the error’s effects.” United States v. Becton,

601 F.3d 588, 598 (D.C. Cir. 2010); see also United States v.

Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998). In addition,

this court will presume “that a jury acts with common sense

and discrimination when confronted with an improper remark

from a prosecutor and owes deference to the district court’s

assessment of such a statement’s prejudicial impact on the

jury.” United States v. Childress, 58 F.3d 693, 716 (D.C. Cir.

1995) (citation and internal quotation marks omitted).

The Supreme Court has described the federal prosecutor

as occupying a position of public trust:

The United States Attorney is the representative not of

an ordinary party to a controversy, but of a

sovereignty whose obligation to govern impartially is

as compelling as its obligation to govern at all; and

whose interest, therefore, in a criminal prosecution is

not that it shall win a case, but that justice shall be

done. As such, he is in a peculiar and very definite

sense the servant of the law, the twofold aim of which

is that guilt shall not escape or innocence suffer. He

27

may prosecute with earnestness and vigor — indeed,

he should do so. But, while he may strike hard blows,

he is not at liberty to strike foul ones. It is as much his

duty to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every

legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935); accord

Taylor v. United States, 413 F.2d 1095 (D.C. Cir. 1969). It

follows from this rigorous standard that, in making opening

and closing arguments, a prosecutor has an obligation “to

avoid making statements of fact to the jury not supported by

proper evidence introduced during trial,” even when the

misstatements are made in good faith. Gaither, 413 F.2d at

1079. Equally well settled, “[a] prosecutor may not make

comments designed to inflame the passions or prejudices of

the jury.” United States v. Johnson, 231 F.3d 43, 47 (D.C.

Cir. 2000); see Childress, 58 F.3d at 715. These general

principles apply to, and inform the particular function of, the

government’s opening and closing arguments in a criminal

trial.

1. “The purpose of an opening statement is to provid[e]

background on objective facts while avoiding prejudicial

references,” and hence “[t]he prosecutor’s opening statement

should be an objective summary of the evidence reasonably

expected to be produced, and the prosecutor should not use

the opening statement as an opportunity to poison the jury’s

mind against the defendant or to recite items of highly

questionable evidence.” United States v. Thomas, 114 F.3d

228, 247 (D.C. Cir. 1997) (alterations in original) (citations

and internal quotation marks omitted). So understood,

prosecutorial misconduct exists where the government’s

argument touches upon facts prejudicial to the defendant that

the government fails to support by admissible evidence at

28

trial. See Small, 74 F.3d at 1283. On the other hand, a

prosecutor’s reference in opening argument to the defendants

as “two armed gunmen driving through the streets of D.C.,

armed to the teeth, dressed for action, carrying a load of

dope,” although strong and vivid, was not prosecutorial

misconduct because the statement was supported by ample

evidence introduced at trial. United States v. Moore, 104 F.3d

377, 390 (D.C. Cir. 1997).

The prosecutor’s opening argument appears to have

improperly departed from the standard in Berger and applied

to opening arguments by this court. As in Small, 74 F.3d at

1283, it appears “the prosecutor came close to the line . . . in

several instances and crossed it in others.” For example,

appellants were charged with committing 31 murders, and the

prosecutor’s repeated use of the word “execute” at the start of

the trial seems to run afoul of the concern expressed by the

court in United States v. Jones, 482 F.2d 747, 753 (D.C. Cir.

1973), in stating the court could “not condone” the

prosecutor’s reference during closing argument to the

defendant as an “executioner.” More generally, the opening

argument includes a number of instances where the prosecutor

went beyond merely providing an “objective summary of the

evidence.” Thomas, 114 F.3d at 248 (citation and quotation

marks omitted). Such statements referring to the murdered

victims as “[w]here there once was face and life, now there is

nothing but empty black space. . . . Where there once was life,

now there’s death,” May 9, 2002 PM Trial Tr. at 113, are

neither based on evidence nor free from innuendo. Rather,

they attempt to appeal to the jury’s emotions by dramatic

effect. See Childress, 58 F.3d at 715. Although other

statements listing the 31 murder victims by names and dates

on which they were killed are grounded in admissible

evidence that the government intended to introduce at trial,

this evidentiary nexus became tenuous once the prosecutor

29

began discussing the victims’ first days of school, favorite

songs, families, mothers, fathers, coffins, and funerals. Cf.

United States v. Dominguez, 835 F.2d 694, 700 (7th Cir.

1987). Indeed, the district court recognized that although the

prosecutor’s opening argument “was fairly factually stated” it

contained “some hyperbole,” May 9, 2002 PM Trial Tr. at

127, a disfavored technique, see United States v. North, 910

F.2d 843, 895 (D.C. Cir. 1990); United States v. Bouck, 877

F.2d 828, 831 (10th Cir. 1989); Dominguez, 835 F.2d at 701. 7

Although the government is not required to make its opening

argument in a rote manner, the court has admonished that “an

opening statement to the jury should be carefully phrased to

avoid overstatement.” Thomas, 114 F.3d at 248. It is the

government’s opportunity to present the jury with argument

based “on objective facts while avoiding prejudicial

references.” Id. at 247 (emphases added) (citation and

quotation marks omitted).

7

At the conclusion of the prosecutor’s opening statement, the

district court sua sponte instructed the jury, as it had at the outset of

the trial, that

the statements of the lawyers aren’t evidence. They’re

intended to help you follow the evidence when the

evidence is introduced. The defendants deny these charges,

and you should keep an open mind until after you’ve heard

all the evidence and I give you my final instructions on the

law.

May 9, 2002 PM Trial Tr. at 114 (paragraph break omitted). The

district court then denied appellants’ oral motions for a mistrial. It

explained that the jury instruction “takes care of any other

problems” and that it “didn’t find the opening to be inflammatory in

the sense that defense counsel saw it . . . but, rather, was fairly

factually stated with some hyperbole.” Id. at 127.

30

2. “The sole purpose of closing argument is to assist the

jury in analyzing the evidence,” and hence courts have

recognized that the prosecutor (as well as defense counsel) is

afforded some leeway in “stat[ing] conclusions drawn from

the evidence,” United States v. Bailey, 123 F.3d 1381, 1400

(11th Cir. 1997) (citation and quotation marks omitted); see

also Herring v. New York, 422 U.S. 853, 862 (1975); 6

WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 24.7(b)

(3d ed. 2007). “[I]n closing argument counsel may not refer

to, or rely upon, evidence unless the trial court has admitted

it.” United States v. Maddox, 156 F.3d 1280, 1282 (D.C. Cir.

1998); see also Small, 74 F.3d at 1280. But the prosecutor

may, for instance, draw inferences from evidence that support

the government’s theory of the case so long as the prosecutor

does not intentionally misrepresent the evidence. See United

States v. Deloach, 530 F.2d 990, 1000 (D.C. Cir. 1975).

Indeed, the prosecutor “may strike hard blows,” but not “foul

ones.” Berger, 295 U.S. at 88. Because the line between

permissible and impermissible arguments will not always be

clear, the inquiry is necessarily contextual. See Catlett, 97

F.3d at 572; Deloach, 530 F.2d at 999-1000.

Some statements by the prosecutor during closing

argument appear problematic. Illustrative is the prosecutor’s

invitation for the jurors to “imagine Scott Downing,” one of

the murder victims, in “the last few minutes of [his] life.”

The prosecutor told the jury:

Scott Downing is bound with duct tape. It’s pitch

black in the back of that U-haul. He does not know

what’s going to happen to him. He must — he must

wonder if he’s going to live through this night. . . .

He’s taken out of that U-haul. He tries to talk but he

can’t. All he can do is mumble. He feels the grass

under his body. He feels the gravel of the road. . . .

31

And then a gun is placed to the back of his head and

two bullets.

Nov. 21, 2002 AM Trial Tr. at 112-13. On appeal, the

government responds, in a footnote, that this narrative “had

sympathetic overtones” only “[a]t a superficial level” because

the jury heard evidence that Downing had been kidnapped,

bound and gagged, and shot by the side of the road.

Appellee’s Br. at 96 n.68. This response, however, misses the

fundamental distinction between permissible and

impermissible closing arguments. In summarizing evidence

supporting conviction, a prosecutor may not take artistic

license with the trial evidence, construct a more dramatic

version of the events, provide conjecture about a victim’s

state of mind, and then defend against a prosecutorial

misconduct claim by maintaining the statements are “fact-

based.” Sensationalization, loosely drawn from facts

presented during the trial, is still a “statement[] of fact to the

jury not supported by proper evidence introduced during

trial,” Gaither, 413 F.2d at 1079, clearly “designed to inflame

the passions or prejudices of the jury,” Johnson, 231 F.3d at

47. Although not as egregious as comparing appellants to

Hitler, as occurred in North, 910 F.2d at 895, there are, as

every prosecutor knows, limits to striking “hard blows,”

Berger, 295 U.S. at 88.

3. Nonetheless, assuming, as appellants contend, that

prosecutorial misconduct occurred during the arguments to

the jury, it did not substantially prejudice appellants.

Although the specific arguments to which appellants object

appeared at times to address central issues in the case, there

was overwhelming evidence of appellants’ guilt of the crimes

implicated by the prosecutor’s purported misconduct, and the

district court gave general limiting instructions on the

arguments of counsel to the jury at the beginning of the trial,

32

after the prosecutor’s opening argument, and during the final

instructions to the jury before it began deliberating. See

Thomas, 114 F.3d at 249; Gaither, 413 F.2d at 1079.

Appellants’ reliance on United States v. Moore, 375 F.3d

259 (3d Cir. 2004), is misplaced. In that case the prosecutor’s

closing argument compared the defendant to a 9/11 “terrorist”

on the eve of the first anniversary of those events and

referenced irrelevant evidence that the defendant was forcing

children to sell drugs. Reversal of the convictions, however,

was based on the fact that “[i]nadmissible evidence and

highly inflammatory statements came rolling in unimpeded”

throughout the trial in such a pervasive manner as to

undermine the soundness of the jury verdict. Id. at 263-65.

This court applies a similar standard to the prejudice inquiry:

“[A]bsent ‘consistent and repeated misrepresentation’ to

influence a jury, ‘[i]solated passages of a prosecutor’s

argument, billed in advance to the jury as a matter of opinion

not of evidence, do not reach the same proportions’” of severe

misconduct; by contrast, “tainted closing arguments that

follow on the heels of improper and indecorous prosecutorial

conduct during trial are more likely to amount to the type of

severe misconduct that justifies reversing a conviction.”

North, 910 F.2d at 897 (second alteration in original) (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 646 (1974)). But

unlike in the Third Circuit case, that standard is not met in the

instant case.

Here, the severity of what appellants have identified on

appeal as misconduct was limited to relatively small portions

of lengthy opening and closing arguments. See United States

v. Monaghan, 741 F.2d 1434, 1443 (D.C. Cir. 1984). As this

court has observed on occasion, “the length of time between

the prosecutor’s opening statement and jury deliberations” —

seven months in the instant case — “makes it unlikely that

33

specific allegations in the opening profoundly influenced

those deliberations.” United States v. Williams-Davis, 90

F.3d 490, 508 (D.C. Cir. 1996). Moreover, the district court

repeated its general limiting instruction that the statements of

counsel are not evidence at the outset of the trial and

following the prosecutor’s opening argument, May 9, 2002

PM Trial Tr. at 114, and again after closing arguments in

giving final instructions to the jury, see Dec. 9, 2002 AM

Trial Tr. at 72. This is usually a strong ameliorative

consideration for prosecutorial misconduct during opening,

see Thomas, 114 F.3d at 249, and closing argument,

Childress, 58 F.3d at 716; North, 910 F.2d at 897; United

States v. Hawkins, 595 F.2d 751, 754-55 (D.C. Cir. 1978).

Although the type of general instruction given here is not a

guarantee for the government as necessarily mitigating the

prejudicial effects of prosecutorial misconduct in arguments,

see North, 910 F.2d at 897 n.33, this is not a “particularly

egregious case[]” that would require additional cautionary and

limiting instructions, and the defense did not request them,

Thomas, 114 F.3d at 249 (citation and quotation marks

omitted). Under the circumstances, we conclude, assuming

prosecutorial misconduct during opening and closing

arguments to the jury, that the misconduct did not

impermissibly and prejudicially interfere with the jury’s

ability to assess the evidence.

B.

Overview Witness. More problematic is the government’s

use of a Federal Bureau of Investigation (“FBI”) agent as an

overview witness. FBI Agent Daniel Sparks testified as the

first witness in the government’s case-in-chief. His testimony

provided an overview of the government’s case, setting forth

for the jury the script of the testimony and evidence the jury

could expect the government to present in its case-in-chief.

34

Further, he expressed his opinion, based on his training and

experience, about the nature of the investigation conducted in

this case.

Appellants contend that the use of an overview witness as

the government’s first witness improperly permitted the

government, over defense objections, to elicit FBI Agent

Sparks’s opinions about the charged crimes, the reasons for

appellants’ actions in various circumstances, the nature of the

charged conspiracy and the relationships between co-

conspirators, including the cooperating co-conspirators who

testified as government witnesses, and the strength of the

evidence — all before the government had presented any such

evidence. Appellants suggest that FBI Agent Sparks’s

testimony left the impression for the jury that it should accept

that the co-conspirator cooperating witnesses would fully and

truthfully recount the events and impressions that he outlined

in his testimony. Hence, the question is whether such

overview testimony is permissible, and even if permissible

with respect to the FBI agent’s description of aspects of the

pre-indictment investigation of which he had personal

knowledge, whether the overview witness’s testimony here

caused substantial prejudice to appellants. Our conclusions

are not affected by whether appellants’ challenge is viewed as

a question of prosecutorial misconduct, as appellants contend,

or a claim of abuse of discretion by the district court in

admitting inadmissible evidence, United States v. Watson, 409

F.3d 458, 462 (D.C. Cir. 2005); United States v. Microsoft

Corp., 253 F.3d 34, 101 (D.C. Cir. 2001).

Until recently this court had not addressed the

appropriateness of a government overview witness at the

outset of its case, but had identified the “obvious dangers

posed by summarization of evidence” by a non-expert witness

called by the government during its case-in-chief in United

35

States v. Lemire, 720 F.2d 1327, 1348 (D.C. Cir. 1983). The

analysis in Lemire is instructive. In that case, the government

called toward the end of its case-in-chief an FBI agent, who

was also a certified public accountant, “to summarize the

evidence about the complex cash flow through offshore

companies” in a prosecution for wire fraud, interstate

transportation of proceeds of fraud, and conspiracy. Id. at

1346. The FBI agent “used four summary charts to re-

examine th[e] evidence” already presented by the government

“in a more organized fashion,” and “prefaced each piece of

his testimony by identifying the document in evidence from

which he obtained the information.” Id. Upon defense

objection that the FBI agent was an improper witness under

Federal Rule of Evidence 602, 8 the district court conducted a

“full voir dire examination” before allowing the FBI agent to

testify, “subject to limiting instructions that his testimony was

explanatory and was not itself substantive evidence.” Id. at

1346-47.

On appeal, this court held that the district court did not

abuse its discretion in permitting the government to use a non-

expert summary witness because

neither Rule 602’s literal language nor its overriding

purpose was violated. [The FBI agent] did not testify

about any of the events underlying the trial: he only

summarized evidence about cash flows that several

8

At the time, Rule 602 of the Federal Rules of Evidence

provided, as relevant, that “‘[a] witness may not testify to a matter

unless evidence is introduced sufficient to support a finding that he

has personal knowledge of the matter.’” Lemire, 720 F.2d at 1347

n.30 (quoting FED. R. EVID. 602). Subsequent amendments were

technical in nature. See FED. R. EVID. 602 advisory committee’s

note.

36

prior witnesses had already offered. As to that

evidence, he testified from his personal knowledge of

the transcripts and exhibits.

Id. at 1347. The court also noted that other courts had

“permitted such summaries under Rule 1006, allowing for

admission into evidence of summaries of documents too

voluminous to be conveniently examined in court” even if the

documents were already in evidence. Id. 9 That rule aside, the

court observed that “[t]here is an established tradition that

permits a summary of evidence to be put before the jury with

proper limiting instructions.” Id. (citations and quotation

marks omitted). Nonetheless, this court concluded that the

claim of unfair prejudice “raises more troubling concerns.”

Id. at 1347-48. Initially the court noted that the non-expert

summary evidence was cumulative and subject to challenge

under Rule 403 as more unfairly prejudicial than probative.

Id. at 1348. It also acknowledged that a non-expert summary

witness “can help the jury organize and evaluate evidence

which is factually complex and fragmentally revealed in the

testimony of a multitude of witnesses throughout the trial.”

Id. But the court pointed to three “obvious dangers posed by

summarization of evidence.” Id.

9

Rule 1006 of the Federal Rules of Evidence provides:

The contents of voluminous writings, recordings, or

photographs which cannot conveniently be examined in

court may be presented in the form of a chart, summary, or

calculation. The originals, or duplicates, shall be made

available for examination or copying, or both, by other

parties at reasonable time and place. The court may order

that they be produced in court.

37

First, the jury might treat the summary evidence as

additional or corroborative evidence that unfairly strengthens

the government’s case. The court was satisfied that for a

summary witness there were adequate safeguards, including

cross-examination and limiting instructions, that could be

fashioned by the district court to prevent the jury from

treating the summary evidence as substantive proof. The

court emphasized that the defendant’s challenge to the

personal knowledge of the summary witness was not an issue

because the witness “had carefully reviewed the charts and

ensured that they reflected information contained in

documents already in evidence.” Id. at 1349 (emphasis

added); see also United States v. Kayode, 254 F.3d 204, 212

(D.C. Cir. 2001).

Second, summary witness testimony posed the risk

that otherwise inadmissible evidence might be introduced.

This concern was ameliorated, the court concluded, because

“the judge, prosecutor and defense counsel all heard the

evidence upon which [the witness] based his summary” and

hence “he was unlikely to stray from that evidentiary base

without quickly being stopped.” Lemire, 720 F.2d at 1349

n.33. Indeed, the court noted, “at one point the witness

inadvertently started to discuss material not in evidence, and

the prosecutor prevented him from doing so.” Id.

Third, a summary witness might permit the

government to have an extra closing argument. The court

noted, however, that the summary witness had made no

“controversial inferences or pronounced judgment” and thus

the district court had no need to interfere with the examination

on this ground. See id. at 1349-50.

Other circuits to address the use of overview witnesses

have reached uniformly negative conclusions in view of the

38

serious dangers of prejudice to a fair trial. The Court of

Appeals for the First, Second, and Fifth Circuits have held

that the use of overview testimony by the government is a

“troubling development” for this very reason. United States

v. Casas, 356 F.3d 104, 120 (1st Cir. 2004); see also United

States v. Garcia, 413 F.3d 201 (2d Cir. 2005); United States v.

Griffin, 324 F.3d 330 (5th Cir. 2003). As the First Circuit

explained in describing the practice as “inherently

problematic”:

[S]uch testimony raises the very real specter that the

jury verdict could be influenced by statements of fact

or credibility assessments in the overview but not in

evidence. There is also the possibility that later

testimony might be different than what the overview

witness assumed; objections could be sustained or the

witness could change his or her story. Overview

testimony by government agents is especially

problematic because juries may place greater weight

on evidence perceived to have the imprimatur of the

government.

Casas, 356 F.3d at 119-20 (internal citation omitted).

Approaching the question from a different perspective, the

Second Circuit prohibited overview witnesses from giving lay

opinions about anticipated evidence without satisfying the

three requirements of Federal Rule of Evidence 701 — that

the witness’s testimony (1) be based on his personal

perception, (2) be helpful to the jury, and (3) not be based on

scientific, technical, or other specialized knowledge. See

Garcia, 413 F.3d at 211-17. As regards the second factor, the

Second Circuit dismissed the notion that an overview witness

aided the jury by framing how the government’s case-in-chief

will unfold, observing that “[t]he law already provides an

39

adequate vehicle for the government to ‘help’ the jury gain an

overview of anticipated evidence as well as a preview of its

theory of each defendant’s culpability: the opening

statement.” Id. at 214. To the extent the summary witness

testified to the ultimate question of fact, the Second Circuit

noted that “courts should be wary of opinion testimony whose

‘sole function is to answer the same question that the trier of

fact is to consider in its deliberations,’” id. at 210 (quoting 4

WEINSTEIN’S FEDERAL EVIDENCE § 701.05 (2d ed. 2004), and

citing FED. R. EVID. 704 advisory committee’s notes to 1972

proposed rules), observing that it had previously held in two

other cases that it was “error to allow law enforcement

witnesses to express opinions as to [the] defendants’

culpability based on the totality of information gathered in the

course of their investigations,” id. at 211 (citing United States

v. Grinage, 390 F.3d 746, 749-51 (2d Cir. 2004); United

States v. Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003)). The

court held that “the foundation requirements of Rule 701 do

not permit a law enforcement agent to testify to an opinion . . .

based [on investigative work] and formed if the agent’s

reasoning process depended, in whole or in part, on his

specialized training and experience.” Id. at 216.

This court recently observed that the First, Second, and

Fifth Circuits “have viewed agents’ hearsay-laden or hearsay-

based overview testimony at the onset of trial as a rather

blatant prosecutorial attempt to circumvent hearsay rules.”

United States v. Smith, 640 F.3d 358, 367 (D.C. Cir. 2011)

(citations omitted). In Smith, the defendant was charged with

drug and firearm offenses. An FBI agent testified at the start

of the trial that Smith and a co-conspirator “were working

together putting their money together and going to New York

to buy heroin.” Id. at 366. On appeal, Smith contended that

the overview testimony — the single sentence — was based

on inadmissible hearsay and thus violated Federal Rules of

40

Evidence (“FRE”) 701 and 802. Assuming the same

prohibition against inadmissible hearsay testimony by an

overview witness applied as in the other circuits, the court

concluded that the FBI agent’s objected-to single-sentence

testimony was not based on otherwise inadmissible hearsay

because the underlying statements were either admissions of a

party-opponent or co-conspirator statements under FRE

801(d)(2), see id. at 367-68, and if error, was harmless, see id.

at 368. The court reached the same ultimate conclusion with

respect to the agent’s lay opinion testimony about the

meaning of slang used by Smith and his co-conspirators

during recorded conversations; although the lay opinion

testimony was inadmissible under FRE 701 because it was

based on specialized knowledge gained from working on

other drug investigations, id. at 365 (citing United States v.

Wilson, 605 F.3d. 985, 1026 (D.C. Cir. 2010)), the error was

harmless because the agent would have qualified as an expert

under FRE 702 and offered the same testimony, id. at 366.

The district court is ordinarily afforded broad discretion

to determine the manner in which evidence will be received.

See Huddleston v. United States, 485 U.S. 681, 690 (1988).

But in Lemire, this court concluded that “the pervasiveness of

the[] dangers [it had identified with summarization of

evidence] requires that we review the use of a summary

witness closely.” 720 F.2d at 1348. Indeed, it was only

“under appropriate circumstances with appropriate

instructions” that this court “in the past approved the use of

summary witnesses . . . in jury trials.” Microsoft Corp., 253

F.3d at 101. We accordingly review FBI Agent Sparks’s

overview testimony closely, aware that there was no voir dire

before his testimony and a limiting instruction was given to

the jury only after he completed his testimony, and then only

with regard to opinions, not otherwise described, that he may

have offered while testifying.

41

All three dangers identified by this court in Lemire are

evident from the record in this case: FBI Agent Sparks

testified about evidence not yet presented while opining that

the cooperating witnesses would present truthful evidence

because they were insiders and were guilty themselves,

strengthening the government’s yet-to-be presented case and

offering inadmissible evidence while providing the

government with a second opening argument. For example,

upon being shown a map of the District of Columbia, FBI

Agent Sparks confirmed that the 31 circles located on the map

accurately reflected the locations of the 31 charged murders,

and that murders clustered in certain locations occurred

toward the beginning of the charged conspiracy. See May 15,

2002 AM Trial Tr. at 68-69. But no such evidence was before

the jury and FBI Agent Sparks did not purport to testify from

personal knowledge of each murder. At other points, FBI

Agent Sparks referred to witness testimony that was never

presented to the jury during the course of the trial. In one

exemplary circumstance, FBI Agent Sparks testified on

redirect examination that co-conspirator Erskine Hartwell had

described his role in the conspiracy as supplying drugs and

introducing Moore and Gray to Oscar Veal. See May 16,

2002 AM Trial Tr. at 56. When asked by the district court

whether this information was “based on what [Hartwell] told

[him],” FBI Agent Sparks agreed, prompting the district court

to state: “The jury is going to hear his testimony.” Id. at 57.

Yet when asked only moments later by the prosecutor “if

Erskine Hartwell will be a witness in this case or not,” FBI

Agent Sparks replied that he “d[idn’t] know for sure if

[Hartwell] will.” Id. at 59. From portions of the transcript

submitted by the parties to this court, there is no indication

that Hartwell testified at trial and hence “later testimony . . .

differe[d] [from] what the overview witness assumed.”

Casas, 356 F.3d at 119-20. The prosecutor thus

impermissibly invited the jury to “rely upon the alleged facts

42

in the [overview] as if [those] facts had already been proved.”

Griffin, 324 F.3d at 349 (alterations in original) (citation and

internal quotation marks omitted). 10

Likewise, FBI Agent Sparks impermissibly commented

on the strength of the government’s yet-to-be introduced

evidence, vouched for the credibility of witnesses the

government intended to call at trial, and gave his personal

opinion as to guilt or innocence. Weighing trial evidence and

making “[d]eterminations of credibility are for the jury,”

United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995)

(citation and quotation marks omitted); see also Jackson v.

Virginia, 443 U.S. 307, 319 (1979), as is “draw[ing] the

ultimate conclusion of guilt or innocence,” United States v.

Gaudin, 515 U.S. 506, 514 (1995); see also Garcia, 413 F.3d

at 210-11; United States v. Peterson, 483 F.2d 1222, 1238

(D.C. Cir. 1973). FBI Agent Sparks’s testimony crossed the

line in a number of instances. For example, he testified that it

was important, in his view, to use cooperating witnesses in

this case because it was “the only way” to gain “access to the

inside information.” May 15, 2002 AM Trial Tr. at 25.

Acknowledging that cooperating witnesses were “themselves

. . . criminals[,] unfortunately,” he further testified that the

cooperating co-conspirator witnesses nonetheless

know what’s going on, they have the information,

they’re the eyewitnesses, ear-witnesses, they hear

what these guys are talking about after they commit a

murder, they witness a murder, they know where the

stash locations are for drugs. . . . [T]hey are present

10

Other co-conspirator cooperating witnesses testified to

Hartwell’s role in the conspiracy. See, e.g., May 20, 2002 PM Trial

Tr. at 139; Aug. 26, 2002 PM Trial Tr. at 113-16.

43

when drug deals are done. They have been with these

people day in and day out, and you need that kind of

testimony. That’s the only way to put these kind[s] of

cases together.

Id. He also testified that the goal in a debriefing session was

to “[g]et[] complete and truthful information” and that it was

important to “try and verify” the information “[j]ust to make

sure the person is truthful, that they are complete.” Id. at 15,

16. On redirect examination, FBI Agent Sparks reinforced

the notion that the cooperating witnesses were guilty of

committing crimes in their capacity as the defendants’ co-

conspirators:

Q: You were asked a lot of questions on cross-

examination about cooperating witnesses, and you

continually referred to them as criminals.

A: Yes.

Q: Any doubt in your mind about that?

A: None whatsoever.

May 16, 2002 AM Trial Tr. at 59.

All of this was opinion testimony that went far beyond

“constructing the sequence of events in the investigation . . .

to provide background information and to explain how and

why the agents even came to be involved with [a] particular

defendant.” United States v. Flores-de-Jesús, 569 F.3d 8, 19

(1st Cir. 2009) (citations and internal quotation marks

omitted). Instead, these statements suggested both directly

and indirectly to the jury that an experienced and highly

trained FBI agent had determined that the cooperating co-

44

conspirators who would testify at trial were to be treated as

credible witnesses and that appellants were guilty of the

charged crimes. The clear implication was that the

government had selected only truthful co-conspirator

witnesses for the pre-indictment investigation, from whom the

jury would hear during the trial.

In sum, FBI Agent Sparks’s testimony was improper in

offering his non-expert opinions about the charged conspiracy

and appellants, vouching for the reliability of the investigation

and of the cooperating co-conspirator witnesses the

government planned to have testify at trial, and discussing

evidence that had yet to be introduced. Given the dearth of

taped conversations and videotaped evidence — none as to

Moore — and almost exclusive reliance on co-conspirator

cooperators’ testimony, the government understandably might

seek at the outset to enhance its case in the jury’s mind with

the imprimatur of an FBI agent. But the prosecutor went too

far in questioning, allowing FBI Agent Sparks to act as an

expert witness with respect to gang investigations and to refer

to evidence that would never be introduced at trial. The

district court, in turn, failed to sustain appropriate defense

objections to FBI Agent Sparks’s testimony that purported to

offer opinion testimony and to confirm government evidence

that had yet to be introduced.

Because a witness presenting an overview of the

government’s case-in-chief runs the serious risk of permitting

the government to impermissibly “paint a picture of guilt

before the evidence has been introduced,” Griffin, 324 F.3d at

349, and may never be introduced, see Flores-de-Jesús, 569

F.3d at 17, we join the circuits that have addressed the issue in

condemning the practice. Casas, 356 F.3d at 119 (1st Cir.);

Garcia, 413 F.3d at 214 (2d Cir.); Griffin, 324 F.3d at 349

(5th Cir.). See generally 6 WEINSTEIN’S FEDERAL EVIDENCE

45

§§ 1006.04[3], 1006.08[4]. The use of overview witnesses

exacerbates the “obvious dangers” this court identified in

Lemire in the use of non-expert summarization evidence.

Overview testimony offers an opportunity to “poison the

jury’s mind against the defendant or to recite items of highly

questionable evidence.” Thomas, 114 F.3d at 248 (citation

and internal quotation marks omitted). Avoidance of those

dangers is largely beyond the ability of the district court,

much less the defense, to prevent. As the record here

demonstrates, a trained law enforcement officer is likely to go

as far as the questions allow, presenting a picture for the jury

of a solid prosecution case based on his opinion of the

strength and credibility of the witnesses the government plans

to call to testify at trial for reasons made persuasive in view of

the officer’s training and experience. See, e.g., May 15, 2002

AM Trial Tr. at 15-16 (prosecutor asking FBI Agent Sparks

why truthful information is important). After-the-fact limiting

instructions can, at best, mitigate prejudice, rather than

invariably eliminate its effects completely. See United States

v. Curley, 639 F.3d 50, 57 (2d Cir. 2011); Woodcock v.

Amaral, 511 F.2d 985, 994 (1st Cir. 1974). The view of the

government’s case has been implanted in the mind of the jury

by an agent of the Federal Bureau of Investigation who

worked on the case — he should know!

The government remains free to call as its first witness a

law enforcement officer who is familiar with the pre-

indictment investigation or was otherwise personally

involved, where permissible under the Rules of Evidence and

consistent with constitutional guarantees. See Old Chief v.

United States, 519 U.S. 172, 186-88 (1997); United States v.

Curtis, 481 F.3d 836, 838 (D.C. Cir. 2007). Such a witness

may, for example, be able to provide relevant background

information as to the investigation’s duration and scope or the

methods of surveillance, based on personal knowledge. See

46

Flores-de-Jesús, 569 F.3d at 19. Put another way, a law

enforcement officer may “describe a complicated government

program in terms that do not address witness credibility,” but

he may not offer “tendentious testimony.” Griffin, 324 F.3d

at 349. Thus, FBI Agent Sparks could properly describe,

based on his personal knowledge, how the gang investigation

in this case was initiated, what law enforcement entities were

involved, and what investigative techniques were used. See,

e.g., May 13, 2002 PM Trial Tr. at 50-51. What he could not

do was present lay opinion testimony about investigative

techniques in general and opine on what generally works and

what does not, as illustrated by informants who pled guilty.

Neither could he anticipate evidence that the government

would hope to introduce at trial about the charged offenses or

express an opinion, directly or indirectly, about the strength of

that evidence or the credibility of any of the government’s

potential witnesses, including the cooperating co-conspirators.

Although the question is close, we conclude for the

following reasons that the prejudice resulting from the

admission of FBI Agent Sparks’s overview testimony, to the

extent it was inappropriate, was ameliorated: (1) Each

instance of FBI Agent Sparks’s improper testimony identified

by appellants was later confirmed by admissible evidence at

trial, see Appellee’s Br. at 105-07; supra note 10; see also

Griffin, 324 F.3d at 350. (2) Appellants’ defense was limited

to cross-examining testifying cooperating co-conspirators and

other government witnesses (such as Margarita Simmons, an

eyewitness to the murder of her son, Richard Simmons, see

infra Part XXIII.B), see Garcia-Morales, 382 F.3d at 18. (3)

The district court instructed at the conclusion of FBI Agent

Sparks’s testimony in the government’s case-in-chief that the

jury was to disregard any opinion testimony he offered, see

May 16, 2002 AM Trial Tr. at 90. (4) There was

overwhelming evidence of appellants’ guilt, see, e.g., infra

47

Parts VII, XVIII, XXIII.B. And as to some of his

impermissible opinion testimony, FBI Agent Sparks might

have qualified as an expert, see Smith, 640 F.3d at 366.

Accordingly, the error did not “affect[] the outcome of the

district court proceeding[],” United States v. Sumlin, 271 F.3d

274, 281 (D.C. Cir. 2001) (citation and quotation marks

omitted), and hence appellants are not entitled to reversal of

their convictions because of improper overview testimony by

FBI Agent Sparks.

The inauspicious beginning of the government’s case-in-

chief is easily avoided in the future. No less than the court,

the Department of Justice recognizes the high standard set for

the prosecution by the Supreme Court in Berger, 295 U.S. at

88. Similarly, this court’s long-held view of the purpose of

the opening statement to the jury, namely to allow the

prosecutor the opportunity to provide the jury with an

objective overview of the evidence that the government

intends to introduce at trial, see Thomas, 114 F.3d at 247-48,

has long afforded the prosecutor the opportunity to do that for

which the prosecutor improperly used FBI Agent Sparks, see

Garcia, 413 F.3d at 214. This court now having made clear

the exacerbated “obvious dangers” of the overview witness

testifying about evidence yet to be admitted before the jury

affords all parties clear direction to avoid unnecessary risks

— for the prosecutor of an overturned conviction, for the

defense of an unfair trial, and for the district court of having

to retry a case.

C.

Much for the reasons stated in the government’s brief,

appellants’ litany of prosecutorial misconduct claims do not,

in their cumulative effect, warrant reversal. In this regard, we

have considered the probable aggregate effect of any

48

impermissible prosecutorial conduct that may have occurred

on the jury’s ability to judge the evidence fairly. See United

States v. Celis, 608 F.3d 818, 847 (D.C. Cir. 2010) (citing

Egan v. United States, 287 F. 958, 971 (D.C. Cir. 1923)); see

also Thomas, 114 F.3d at 246. In addressing only two of

appellants’ claims of prosecutorial misconduct, we implicitly

have indicated that any other prosecutorial misconduct that

may have occurred was minor in itself and had no prejudicial

effect in view of limiting instructions. For example,

appellants maintain that the prosecutor impermissibly

vouched for the credibility of the government’s witnesses,

particularly co-conspirator cooperating witnesses, during

closing rebuttal argument. Although statements such as

“[t]hey’re telling the truth about their experiences,” Dec. 4,

2002 AM Trial Tr. at 86, impermissibly express the personal

opinion of the prosecutor, they were responses, based on

evidence introduced at trial, to appellants’ attacks on the

credibility of the government’s witnesses during closing

argument. See United States v. Young, 470 U.S. 1, 17-19,

(1985); United States v. Brown, 508 F.3d 1066, 1075-76

(D.C. Cir. 2007); United States v. Robinson, 59 F.3d 1318,

1323 (D.C. Cir. 1995). The prosecutor emphasized to the

jurors, however, that it was their province to weigh the

credibility of witnesses regardless of the arguments of

counsel. See Dec. 4, 2002 AM Trial Tr. at 69; cf. United

States v. Nnanyererugo, 39 F.3d 1205, 1209 (D.C. Cir. 1994).

Importantly, the district court instructed the jury that it alone

determined “the weight, the effect and the value of the

evidence and the credibility of the witnesses,” which evidence

did not include counsels’ opening and closing arguments. See

Dec. 9, 2002 AM Trial Tr. at 70, 72; see also Childress, 58

F.3d at 716; North, 910 F.2d at 897; United States v. Hawkins,

595 F.2d 751, 754-55 (D.C. Cir. 1978).

49

Other claims of prosecutorial misconduct, including

appellants’ arguments relating to Brady v. Maryland, 373 U.S.

83 (1963), and the federal bribery statute, 18 U.S.C.

§ 201(c)(2), see infra Parts VI and XII, are without merit.

Similarly, appellants’ claim that the prosecutor, by eliciting

testimony that appellants had sought the advice of a certain

named attorney to defend against criminal charges not at issue

in this case, inappropriately implied that appellants were

guilty because they took steps to retain this counsel, thus

penalizing appellants for exercising their constitutional right

to counsel under the Sixth Amendment, is without merit. See

United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir.

1973). Although some testimony might impermissibly have

revealed privileged attorney-client conversations, an argument

appellants do not make, there was not a direct statement by

the prosecutor, as in Yeager, that appellants retained counsel

in the instant case because they were guilty. Cf. United States

v. Liddy, 509 F.2d 428, 442-45 (D.C. Cir. 1974) (en banc).

Rather, the evidence demonstrated that the attorney linked

several members of the conspiracy, including Moore and

Gray.

Having considered all of appellants’ claims of

prosecutorial misconduct, we conclude, in light of the district

court’s limiting instructions regarding statements of counsel

and regarding particular arguments or evidence, and the

overwhelming evidence of appellants’ guilt insofar as any

prosecutorial misconduct is concerned, that the cumulative

effect of any prosecutorial misconduct of which appellants

complain did not affect the outcome of the trial, and therefore,

was harmless. See Kotteakos v. United States, 328 U.S. 750,

776 (1946); see also Chapman v. California, 386 U.S. 18, 24

(1967).

50

V.

At trial, the government introduced evidence about

Moore’s role in an uncharged drug-trafficking conspiracy run

by Rayful Edmond; Nunn’s role in an uncharged conspiracy

with Phyllis Webster; the apprehension of Rodman Lee, who

was not a charged co-conspirator, while he was with Gray,

and the contemporaneous discovery in Lee’s car of cocaine

and cocaine base, none of which the government claims

pertained to the charged conspiracy; several uncharged

murders and shootings; and Gray’s uncharged conduct as a

juvenile and others’ perceptions of Gray as a leader while he

was detained at the Oak Hill Juvenile Facility. Appellants

argue that this evidence was irrelevant and highly prejudicial,

admitted in violation of Rules 404(b) and 403 of the Federal

Rules of Evidence. The cumulative effect of these evidentiary

errors, appellants claim, deprived them of due process of law.

Rule 404(b) declares inadmissible evidence of “other

crimes, wrongs, or acts . . . to prove the character of a person

in order to show action in conformity therewith.” FED. R.

EVID. 404(b). But not all evidence of uncharged crimes,

wrongs, or acts is barred by this rule. When evidence of such

acts is “intrinsic” to the charged crime, it is not evidence of

“other” acts and is thus wholly unregulated by Rule 404(b).

See United States v. Alexander, 331 F.3d 116, 124-27 (D.C.

Cir. 2003); United States v. Bowie, 232 F.3d 923, 927-28

(D.C. Cir. 2000); United States v. Badru, 97 F.3d 1471, 1473-

75 (D.C. Cir. 1996). “Intrinsic” evidence encompasses

evidence that is either “of an act that is part of the charged

offense” or is of “acts performed contemporaneously with the

charged crime . . . if they facilitate the commission of the

charged crime.” Bowie, 232 F.3d at 929.

51

Rule 403 provides that even evidence otherwise

admissible “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” FED. R. EVID. 403.

Rule 403 requires the district court to engage in “on-the-spot

balancing of probative value and prejudice” and to exclude

even factually relevant evidence when it fails the balancing

test. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379,

384 (2008) (quoting 1 S. CHILDRESS & M. DAVIS, FEDERAL

STANDARDS OF REVIEW § 4.02, at 4-16 (3d ed. 1999))

(internal quotation marks omitted).

Appellants claim that the district court should have barred

the government from introducing the evidence of uncharged

conduct in question because it was not “intrinsic” to the

charged conduct and was therefore evidence of “other crimes,

wrongs, or acts” barred by Rule 404(b). Appellants also

contend that such evidence was erroneously admitted under

Rule 403 because its risk of prejudice to the defendants

substantially outweighed its probative value. Although

appellants are likely correct that the district erred by

permitting the government to introduce the evidence of

uncharged conduct at issue, particularly of Moore’s role in the

Rayful Edmond conspiracy, Nunn’s role in the Phyllis

Webster conspiracy, and Gray’s unlawful conduct as a

juvenile, we hold that any error was not reversible. 11 Even

11

Circuit Judge Rogers would find error under Rule 404(b) as

to the introduction of certain evidence, but nonetheless conclude the

errors were harmless beyond a reasonable doubt for the reasons

stated by the court. Exemplary is the testimony of Rayful Edmond,

a notorious drug kingpin in the District of Columbia serving

multiple life sentences in prison following his conviction. See

United States v. Edmond, 52 F.3d 1080, 1083-84, 1087 (D.C. Cir.

52

assuming constitutional error, we will not reverse a conviction

if the error was “harmless beyond a reasonable doubt.”

Chapman v. California, 386 U.S. 18, 24 (1967). In light of

the amount and strength of the evidence the government

presented of the charged crimes, we find that any potential

error was harmless.

VI.

In 1996, Gray murdered Ricardo Bailey. Gray did so at

the request of Rodman Lee. Gray and Lee were arrested

while fleeing the scene of the murder, and a search of Lee’s

van revealed approximately five kilograms of cocaine hidden

in a secret compartment. Lee pled guilty to the ensuing drug

charges. Documents related to that plea show that Lee was a

major drug dealer, that Lee was senior to Gray in status as a

1995). Edmond testified for two days at trial concerning a separate,

violent conspiracy that predated the Moore and Gray conspiracy

charged in the superseding indictment. The fact that Moore was

involved in Edmond’s conspiracy was irrelevant to the charged

conspiracy, as the trial transcript belies the government’s assertion

that the Edmond conspiracy was the genesis of, and template for,

Moore’s drug-trafficking operation. Accordingly, Edmond’s

testimony about Moore’s prior criminal activity can only be viewed

as propensity evidence introduced to demonstrate Moore’s bad

character, see United States v. Douglas, 482 F.3d 591, 596 (D.C.

Cir. 2007), and to “complete [Moore’s] story” or “explain [his]

circumstances,” a practice this court rejected in United States v.

Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000). The same is true of

evidence regarding Gray’s unlawful conduct as a juvenile, which

evidence the government purported was designed to demonstrate

the formation and scope of the charged conspiracy. The evidence

went beyond the fact that Gray met members of the charged

conspiracy while incarcerated in a facility for juvenile delinquents

and served no purpose other than to show his bad character. See

Douglas, 482 F.3d at 596.

53

drug dealer, and that Lee was transporting most of the cocaine

in his van to a distributor who was not implicated in the

Moore and Gray conspiracy.

Appellants claim that the government’s failure to disclose

the information in Lee’s plea documents to the defense

violated the government’s obligations under Brady v.

Maryland, 373 U.S. 83 (1963).

“There are three components of a true Brady violation:

The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Appellants’ Brady claim fails because some of this

information was not favorable to appellants, and because the

government’s failure to disclose the remainder did not cause

prejudice.

The evidence showing that Lee was a higher-level drug

dealer than Gray would not have aided appellants. The

government itself contended that Lee was “at a higher level in

terms of drugs than Kevin Gray.” May 9, 2002 PM Trial Tr.

at 69. According to the government, it was Lee’s status as a

major cocaine supplier that motivated Gray to murder Bailey

on Lee’s behalf.

With respect to the evidence that the drugs in Lee’s van

were destined for someone outside the Moore and Gray

conspiracy, appellants’ Brady claim fails because they cannot

show prejudice. To show prejudice, appellants must

demonstrate “a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding

would have been different.” United States v. Pettiford, 627

54

F.3d 1223, 1227 (D.C. Cir. 2010) (quoting Strickler, 527 U.S.

at 280). “The defendant bears the burden of showing a

reasonable probability of a different outcome.” United States

v. Johnson, 519 F.3d 478, 488 (D.C. Cir. 2008) (citing

Strickler, 527 U.S. at 291).

The evidence that the drugs in Lee’s van were not

destined for the Moore and Gray organization would have

been of minimal value to the defense. In its opening

statement, the government mentioned the drugs’ destination

only in passing, during a lengthy description of Gray

murdering Bailey. See May 9, 2002 PM Trial Tr. at 71. The

government made no other claims about those particular

drugs’ intended recipient, and the drugs’ destination was not

material to the government’s case. Rather, the drugs were

significant simply because their presence corroborated the

government’s claim that Lee was a major drug dealer for

whom Gray would be willing to kill others.

Moreover, the evidence that Lee had distributors outside

the Moore and Gray organization would not have materially

aided appellants. The defense had already shown that

members of the Moore and Gray conspiracy were also

involved in other drug rings. Corroboration of that fact would

have had little importance, because the government did not

deny that Lee, Gray, or others had illegal business not directly

related to Moore and Gray’s conspiracy. Criminals may of

course participate in more than one conspiracy. See, e.g.,

United States v. Marino, 277 F.3d 11, 25 (1st Cir. 2002); see

also United States v. Childress, 58 F.3d 693, 711 n.3 (D.C.

Cir. 1995) (“[T]he fact that certain conspirators engage in

independent drug transactions does not on its own negate the

existence of a single conspiracy.”). The fact that some

appellants did so does not contradict the overwhelming

evidence that Moore and Gray continued to collaborate on

55

crimes long after the defense claimed they had parted ways.

See Pettiford, 627 F.3d at 1227 (“The court . . . has a

responsibility to evaluate the impact of the undisclosed

evidence not in isolation, but in light of the rest of the trial

record.” (citation and quotation marks omitted)).

The government did not violate Brady with respect to the

Lee evidence.

VII.

In a superseding indictment filed on November 17, 2000,

appellants and other indicted and unindicted co-conspirators

were charged with participating in a drug and RICO

conspiracy jointly led by Moore and Gray for over 12 years,

from approximately 1988 through March 2000. Under the

five-year statute of limitations applicable to these charges, see

18 U.S.C. § 3282, the government had to prove that Moore

and Gray’s joint leadership continued into the limitations

period, beginning November 17, 1995. 12 See United States v.

Seher, 562 F.3d 1344, 1364 (11th Cir. 2009). Applying well-

settled law that the court must accept the jury’s guilty verdict

if “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt,” we affirm

the judgment of conviction on these charges. United States v.

Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005) (citation and

quotation marks omitted).

Appellants contend that there was insufficient evidence

for the jury to find beyond a reasonable doubt that Moore and

12

This is the latest relevant date by which the government had

to prove the jointly-led conspiracy and continuing criminal

enterprise existed as to any appellant. For ease of analysis we

address the sufficiency of evidence as to this date for all appellants.

56

Gray jointly led a unified conspiracy through November 17,

1995. They maintain that the evidence showed there were

multiple conspiracies — essentially that Moore and Gray split

up their drug operations in the 1993-1994 time frame and

thereafter operated separate conspiracies in different sectors

of the city that came into contact with each other only

casually. See generally United States v. Tarantino, 846 F.2d

1384, 1391-93 (D.C. Cir. 1988). Rather than maintain that

the government failed to prove the traditional elements for a

single conspiracy — common goal, interdependence, and, to a

lesser extent, overlap of participants, see id. at 1393 —

appellants identify the “crux of this issue” to be whether the

government presented sufficient evidence that “Moore and

Gray jointly led the charged conspiracies and [the continuing

criminal enterprise] within the statute of limitations periods,”

Reply Br. at 88, as charged.

As support for their position, appellants point to the

evidence describing Moore’s relocation from the Southeast to

Northeast quadrant of Washington, D.C., prior to November

17, 1995, leaving Gray to operate separately in Southeast. An

examination of this evidence shows that it falls short of

undermining the jury’s verdict that Moore and Gray’s joint

leadership of a single conspiracy continued after Moore’s

move. For instance, appellants emphasize Raymond

Sanders’s testimony that Moore “dropped out of Southeast” in

1993 or 1994 and was not seen in Southeast thereafter. See

May 20, 2002 PM Trial Tr. at 126-27. The jury, however,

could reasonably have credited other testimony that Moore

continued to have dealings in Southeast. See United States v.

Eppolito, 543 F.3d 25, 54 (2d Cir. 2008); see also Dykes, 406

F.3d at 721. Moreover, “shifting emphases in the location of

operations do[es] not necessarily require a finding of more

than one conspiracy.” United States v. Jones, 482 F.3d 60, 72

(2d Cir. 2006). As in United States v. Carson, we reject the

57

argument that multiple conspiracies can be shown through

“attempts artificially to split one conspiracy into two based

simply on geographic lines.” 455 F.3d 336, 376 (D.C. Cir.

2006) (citation and internal quotation marks omitted).

The central issue is whether Moore’s and Gray’s actions

following Moore’s relocation to Northeast are inconsistent

with the jury’s finding that they continued to jointly lead the

charged conspiracy past November 17, 1995. On this point,

appellants maintain that Moore’s relationship with Gray

changed, as shown by evidence that, according to Sanders,

after the move Moore supplied Gray with cocaine only “a few

times.” May 20, 2002 PM Trial Tr. at 138. This

mischaracterizes Sanders’s testimony. On the previous page

of the transcript of his testimony Sanders admits that he had

no knowledge of who was regularly supplying cocaine to

Gray, and that Gray told him of “a few times” that Moore had

supplied cocaine. Id. at 137-38. This is not the same as

evidence that Moore supplied Gray’s operations in Southeast

only a few times. Further, Maurice Andrews testified that

Moore was Gray’s primary supplier of large quantities of

cocaine starting in 1995 and continuing at least into 1996.

See July 9, 2002 PM Trial Tr. at 54-56; see also Dykes, 406

F.3d at 721. There was also evidence that Gray may have

initially obtained cocaine from Ronald Alfred, and Frank

Howard confirmed a separate conspiracy between himself,

Alfred, and Rodman Lee, see July 17, 2002 PM Trial Tr. at

135. Such evidence is neither factually nor legally

inconsistent with a finding that Moore and Gray continued to

lead the charged conspiracy together. Here, much as in

United States v. Maynard, 615 F.3d 544, 554 (D.C. Cir.

2010), as regards “[t]he two purportedly separate conspiracies

. . . , each comprises the core conspiracy charged.” And “the

fact that certain conspirators engage in independent drug

transactions does not on its own negate the existence of a

58

single conspiracy.” United States v. Childress, 58 F.3d 693,

711 n.3 (D.C. Cir. 1995).

The government offered ample evidence of a jointly led

conspiracy through November 17, 1995. This evidence

extends to both the conspiracy’s geographic scope and its

twin principal aims: to unlawfully distribute drugs and

commit murders. See Superseding Indict. at 4-5. The key

testimony as regards the drug operation in Northeast came

from Andrews, who accompanied Gray on a daily basis in

1996. July 9, 2002 PM Trial Tr. at 88. Andrews testified that

Gray “had a lot of guys over [in Northeast],” including

Moore’s cousins, uncles, and brother. Id. at 82-84. Each of

these family members participated in Gray’s Northeast drug

business, which involved Moore as well. See id. at 85, 86.

Indeed, Andrews testified that Moore was the person “in

particular responsible for overseeing the drug operation in that

area of 7th and H, Northeast.” Id. at 88. Moore and Gray’s

joint stewardship in Northeast after November 17, 1995, is

established most clearly by Andrews’s answers on the

government’s direct examination:

Q: How often, when you were hanging out with Kevin

Gray every day, Mr. Andrews, how often would you

go over to Northeast, Washington?

A: Every day.

Q: And why would you go over to Northeast every day?

A: [Gray] had money over there to pick up and

basically we’ll go to see [Moore] and then meet

[Moore] and them.

59

Q: And did that occur right on up through at least 1995

and 1996 and into 1997?

A: Correct.

Id. at 88-89.

There was also sufficient evidence that Moore and Gray’s

joint leadership of the conspiracy continued after November

17, 1995, at a Southeast apartment complex located on Halley

Terrace. Gray oversaw the drug operation in which Andrews,

David Arnold, and Jermaine Vick participated. Although

Arnold testified that “Moore never had any dealings with us

down on Halley Terrace,” Aug. 22, 2002 PM Trial Tr. at 16,

Vick and Andrews testified that Moore supplied the Southeast

operation with drugs. See Sept. 10, 2002 AM Trial Tr. at 11

(Vick); Oct. 16, 2002 AM Trial Tr. at 56 (Andrews); see also

Dykes, 406 F.3d at 721. Moreover, Andrews’s testimony

makes clear that this relationship at Halley Terrace continued

for six to eight months until a temporary two-month fallout

between Moore and Gray around the time of the February

1998 NBA All-Star Game in New York. See Oct. 16, 2002

AM Trial Tr. at 56-60. Contrary to appellants’ contention that

Moore’s actions hardly reflected that of a “leader,”

Appellants’ Br. at 161, Vick recalled that Moore came to see

Gray “[w]hen he need[ed] to see [Gray] or, you know, he

need[ed] to deliver some important information or something

like that, or he needed somebody to carry out a task.” Sept.

10, 2002 AM Trial Tr. at 12 (emphasis added). Likewise,

Oscar Veal testified that he met Moore at Halley Terrace to

discuss murders of targets in Northeast through 1997. See

Aug. 27, 2002 AM Trial Tr. at 13. From this evidence, the

jury could reasonably infer that Moore’s absence from time to

time did not necessarily point toward a non-leadership role;

instead it might suggest that Moore was a principal acting in a

60

supervisory role, while Gray coordinated the day-to-day

operations.

Finally, the jury could have reasonably relied on evidence

concerning Veal’s 1998 murder of Roy Cobb, a rival drug

dealer, well into the statutory limitations period. As Veal

recounts, Gray drove both of them from Southeast to meet

Moore at a location in Northeast. Once there, and in the

presence of other members of the conspiracy, Moore and

Gray discussed killing Cobb. Having already devised a plan

for the murder, Moore and Gray walked Veal to a specific

location where it was known that Cobb would stop at an

intersection, and instructed Veal on how to go about killing

Cobb. Although Moore and Gray continued to refine and

change the plan, Gray provided Veal with the gun used to

murder Cobb and afterward Moore compensated Veal with

cash and cocaine. See id. at 50-55, 90; see also Oct. 16, 2002

AM Trial Tr. at 108-11, 116-20.

In sum, the evidence on which appellants rely in

attempting to demonstrate that Moore and Gray ceased to

serve as joint leaders of the charged conspiracy in 1993 or

1994 does not support the weight they place upon it, could

reasonably have been rejected by the jury in light of other

witnesses’ contrary testimony, or is irrelevant to the existence

of joint leadership. Mindful that “‘the prosecution’s evidence

is to be viewed in the light most favorable to the government,

drawing no distinction between direct and circumstantial

evidence, and giving full play to the right of the jury to

determine credibility, weigh the evidence and draw justifiable

inferences of fact,’” Dykes, 406 F.3d at 721 (quoting United

States v. Foster, 783 F.2d 1087, 1088 (D.C. Cir. 1986)), we

hold that sufficient evidence supported the jury’s finding that

Moore and Gray jointly led the charged conspiracy within the

limitations period.

61

VIII.

Appellants argue that all charges under the District of

Columbia Code were improperly joined to their federal

indictment under Rule 8(b) of the Federal Rules of Criminal

Procedure. Because joinder was improper, appellants

maintain, the district court lacked jurisdiction to hear those

charges under § 11-502(3) of the District of Columbia Code,

which provides that “the United States District Court for the

District of Columbia has jurisdiction of . . . [a]ny offense

under any law applicable exclusively to the District of

Columbia which offense is joined in the same information or

indictment with any Federal offense.”

We have interpreted the term “joined” in § 11-502(3) to

mean “properly joined under [Federal Rule of Criminal

Procedure] 8.” United States v. Jackson, 562 F.2d 789, 793

(D.C. Cir. 1977). Under Rule 8(b), joinder of the local

charges was proper here only if all the offenses charged were

part of the same “series of acts or transactions.” See id. at 794

(holding that “the propriety of joinder in cases where there are

multiple defendants must be tested by Rule 8(b) alone and

that Rule 8(a) has no application”); FED. R. CRIM. P. 8(b)

(“The indictment or information may charge 2 or more

defendants if they are alleged to have participated in the same

act or transaction, or in the same series of acts or transactions,

constituting an offense or offenses.”). Appellants’ contention

is that the superseding indictment and the evidence adduced at

trial demonstrate that the local charges were not properly

joined under Rule 8(b), and that the district court therefore

lacked jurisdiction. We disagree.

We have held that “a ‘series of acts or transactions’ is

‘two or more acts or transactions connected together or

constituting parts of a common scheme or plan.’” United

62

States v. Brown, 823 F.2d 591, 598, (D.C. Cir. 1987) (quoting

United States v. Perry, 731 F.2d 985, 990 (D.C. Cir. 1984)).

Construing the facts of the superseding indictment as true, as

we must, United States v. Zicree, 605 F.2d 1381, 1387 (5th

Cir. 1979); see United States v. Carson, 455 F.3d 336, 372-73

(D.C. Cir. 2006); United States v. Spriggs, 102 F.3d 1245,

1255-56 (D.C. Cir. 1996), the local offenses charged were

committed as acts in furtherance of the charged conspiracy

and/or as predicate acts in the charged RICO conspiracy. All

of the charged offenses, local and federal, were thus part of a

common scheme or plan, which means that, for purposes of

Rule 8(b), they were part of the same series of acts or

transactions. See Carson, 455 F.3d at 373-74. Because we

conclude that the superseding indictment establishes that

joinder of the local offenses was proper, we hold the district

court had jurisdiction under § 11-502(3).

Even if the evidence adduced at trial had demonstrated

that all of the offenses were not part of the same series of acts

or transactions — a proposition we reject — this would not

strip jurisdiction from the district court. If the indictment

establishes proper joinder under Rule 8(b), trial evidence

cannot render joinder impermissible and is thus irrelevant to

our inquiry. Spriggs, 102 F.3d at 1255 (“Rule 8(b) can be

satisfied . . . by the indictment alone . . . .”); Perry, 731 F.2d

at 990 (explaining that “[q]uite obviously, the indictment

might satisfy th[e] requirement” for Rule 8(b) joinder).

IX.

Appellants contend that the introduction into evidence of

autopsy reports authored by the Office of the Chief Medical

Examiner of the District of Columbia and reports of drug

analyses performed by the U.S. Drug Enforcement

Administration (“DEA”) violates the Confrontation Clause of

63

the Sixth Amendment to the Constitution because the reports’

authors were not available for cross-examination. Our review

of the district court’s legal conclusions regarding the

Confrontation Clause is de novo, United States v. Carson, 455

F.3d 336, 362 (D.C. Cir. 2006), and subject to constitutional

harmless error analysis pursuant to Chapman v. California,

386 U.S. 18, 23-24 (1967), see United States v. Smith, 640

F.3d 358, 364 (D.C. Cir. 2011); United States v. Wilson, 605

F.3d 985, 1014 (D.C. Cir. 2010).

The landscape of the Supreme Court’s jurisprudence on

the Confrontation Clause has changed since appellants’ trial

concluded in 2003. The governing rule at the time, set forth

in Ohio v. Roberts, 448 U.S. 56, 65-66 (1980), was that out-

of-court statements admitted against a criminal defendant

avoided the requirements of the Confrontation Clause if they

came within traditional hearsay exceptions or were otherwise

reliable. In 2004, however, the Supreme Court relied on the

Confrontation Clause’s historical underpinnings to hold that

“testimonial” out-of-court statements of a declarant not

testifying at trial were inadmissible under the Confrontation

Clause unless the declarant was unavailable and previously

subject to cross-examination. Crawford v. Washington, 541

U.S. 36, 53-54, 59 (2004). Statements qualifying as

“testimonial” included “ex parte in-court testimony or its

functional equivalent — that is, material such as affidavits,

custodial examinations, prior testimony that the defendant

was unable to cross-examine, or similar pretrial statements

that declarants would reasonably expect to be used

prosecutorially,” other “formalized” materials such as

“affidavits, depositions, prior testimony, or confessions,” and

“statements that were made under circumstances which would

lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.” Id. at

51-52 (citations and quotation marks omitted). The Court

64

applied Crawford in Melendez-Diaz v. Massachusetts, 129 S.

Ct. 2527, 2531-32 (2009), to hold that the state’s use of a

forensic laboratory report to prove that seized cocaine was of

a certain quality and quantity violated the Confrontation

Clause because no live witness competent to testify to the

truth of the statements made in the report was available for

cross-examination.

The Supreme Court’s most recent decision on the

Confrontation Clause is Bullcoming v. New Mexico, No. 09-

10876 (U.S. June 23, 2011). After failing field sobriety tests

and refusing a breath test, Bullcoming was arrested and

required to give a blood sample for the purpose of

determining his blood-alcohol concentration (“BAC”).

Bullcoming’s blood sample was sent to the New Mexico

Department of Health, Scientific Laboratory Division, where

a forensic analyst signed a “certificate of analyst,” part of a

standard form titled “Report of Blood Alcohol Analysis,”

recording Bullcoming’s BAC as 0.21 grams per hundred

milliliters. New Mexico charged Bullcoming with aggravated

driving under the influence of intoxicating liquor, which

requires proof of a BAC of 0.16 grams per hundred milliliters.

At trial the prosecutor introduced the report and certificate of

analyst into evidence as a business record. The forensic

analyst who authored the report did not testify at trial and was

not otherwise subject to cross-examination by Bullcoming.

Instead, the prosecutor called as a witness a scientist from the

same laboratory who had not signed the Report of Blood

Alcohol Analysis, and neither participated in nor observed the

test on Bullcoming’s blood sample. The testifying scientist

was, however, familiar with blood-alcohol analysis and the

laboratory’s testing protocols. Bullcoming, slip op. at 1-5.

Defense counsel objected on Confrontation Clause grounds,

and noted that “her opening, indeed, her entire defense ‘may

very well have been dramatically different’” had the

65

prosecution disclosed prior to the day of the trial that it would

not be calling the certifying analyst as a witness. Id. at 5-6

(citation omitted).

The Supreme Court held that the Report of Blood Alcohol

Analysis was “testimonial” and therefore within the ambit of

the Confrontation Clause, a resulted dictated by Melendez-

Diaz. Id. at 14-16. It further clarified that the “surrogate

testimony” of the substitute witness “does not meet the

constitutional requirement [of cross-examination]. The

accused’s right is to be confronted with the analyst who made

the certification, unless that analyst is unavailable at trial, and

the accused had an opportunity, pretrial, to cross-examine that

particular [analyst].” Id. at 2. Three aspects of the Court’s

reasoning are noteworthy here: First, the Court framed the

question presented as whether “the Confrontation Clause

permit[s] the prosecution to introduce a forensic laboratory

report containing a testimonial certification . . . through the

in-court testimony of an analyst who did not sign the

certification or personally perform or observe the

performance of the test reported in the certification.” Id. at 7-

8; see also id. at 5-6 (Sotomayor, J., concurring in part).

Second, the Court rejected the argument that Bullcoming’s

“true accuser” was the gas chromatagraph machine that

generated the BAC figure and that the analyst’s role was that

of a “mere scrivener.” Id. at 10 (majority opinion). Third, the

Court explained that a surrogate witness knowledgeable as to

the equipment and protocol used in administering the test was

ill-equipped to “convey what [the certifying analyst] knew or

observed about the events his certification concerned, i.e., the

particular test and testing process he employed. Nor could

such surrogate testimony expose any lapses or lies on the

certifying analyst’s part.” Id. at 12.

66

The facts of the instant case resemble in part those of

Bullcoming. The government called as witnesses Dr.

Jonathan Arden, then-Chief D.C. Medical Examiner, and

Jerry Walker, a DEA senior forensic chemist. Dr. Arden

testified as to the contents of approximately 30 autopsy

reports authored by other medical examiners in his office, but,

as in Bullcoming, insofar as the record provided by the parties

shows, he neither performed nor observed the autopsies and

his signature does not appear on any of the reports.13

Similarly, Walker’s testimony concerned 24 drug analyses, 20

of which were performed by other DEA forensic chemists on

drugs seized in the course of the investigation of the charged

conspiracy, the results of which were memorialized in DEA

reports. The autopsy and DEA reports were admitted into

evidence over appellants’ objection that “there is no way to . .

. confront under the Sixth Amendment” unless the

government calls the reports’ authors as witnesses. Oct. 23,

2002 PM Trial Tr. at 90.

This case differs from Bullcoming in three relevant

respects. First, because Walker testified that he authored four

DEA reports, see Oct. 23, 2002 PM Trial Tr. at 68, and he

was available for cross-examination at trial, these four DEA

reports present no Confrontation Clause problem under

Bullcoming. 14 The other 20 DEA reports, however, remain at

issue.

13

The autopsy report of Jaime Pereira, performed by a medical

examiner for the Commonwealth of Virginia, was admitted into

evidence pursuant to stipulation, and thus raises no Confrontation

Clause issue. See Bullcoming, slip op. at 1.

14

Of the four Walker-authored DEA reports, only the DEA

report dated May 15, 2000, relating to the March 20, 2000 seizure

67

Second, Walker personally reviewed, but did not author,

one DEA report shortly after its creation, testifying that “[he]

look[ed] at what the results [were] . . . and ma[d]e sure that

[the analyst] used proper scientific-based knowledge to come

up with [the] results.” Id. at 80. Although the analysis in

Bullcoming indicates that the degree of participation by the

surrogate witness can alter the Confrontation Clause analysis,

see Bullcoming, slip op. at 12; id. at 5-6 (Sotomayor, J.,

concurring in part), Walker’s role appears to be much like that

of the surrogate witness in Bullcoming because he was unable

to “convey what [the authoring forensic chemist] knew or

observed about the events his certification concerned, i.e., the

particular test and testing process he employed,” or “expose

any lapses or lies on the [authoring forensic chemist’s] part,”

id. at 12 (majority opinion). Walker did not observe the test

being performed and did not sign the DEA report as the

approving official. Rather, Walker testified that, in

performing his review, he was “making an assumption that

the chemist used the sample and did the analysis. . . . I’m

making the assumption that they did do each of the tests that

they wrote down on their worksheet.” Oct. 23, 2002 PM Trial

Tr. at 81. In holding there was constitutional error in

Bullcoming, the Supreme Court relied on a similar statement

by the testifying surrogate witness: “you don’t know unless

you actually observe the analysis that someone else conducts,

whether they followed th[e] protocol in every instance.”

Bullcoming, slip op. at 12 n.8 (alteration in original) (citation

and quotation marks omitted).

Third, Dr. Arden testified as the Chief D.C. Medical

Examiner, and prior to trial he may well have had either a

of drugs from Nunn, appears to have been made a part of the multi-

volume record on appeal provided by the parties.

68

“supervisor[y]” role with regard to the reports from his Office

or even “a personal, albeit limited, connection to the

[autopsies] at issue.” Id. at 5 (Sotomayor, J., concurring in

part). Whether such reports would be inadmissible under the

Confrontation Clause despite his testimony is a question left

open in Bullcoming, where the Court was confronted only

with a testifying lab technician who had “no involvement

whatsoever in the relevant test and report.” Id. at 6.

The government’s attempts to avoid the Confrontation

Clause, on the grounds that the autopsy reports rank as non-

testimonial and that the DEA reports contain “raw data,”

rather than “statements,” Appellee’s Br. at 185-87, 189, are

foreclosed by Bullcoming. 15

15

The government suggests that Dr. Arden’s and Walker’s

testimony was permissible as expert testimony pursuant to Federal

Rule of Evidence 703. Appellee’s Br. at 187, 189. The authority

on which the government relies is distinguishable because the

forensic reports in those cases were not introduced into evidence at

trial. See, e.g., United States v. Pablo, 625 F.3d 1285, 1294 (10th

Cir. 2010); United States v. Turner, 591 F.3d 928, 932-33 (7th Cir.

2010). It could well be a different case where an expert witness

discussed out-of-court testimonial statements that “were not

themselves admitted as evidence.” Bullcoming, slip op. at 6

(Sotomayor, J., concurring in part); see also People v. Williams,

939 N.E.2d 268 (Ill. 2010), cert. granted, No. 10-8505 (U.S. June

28, 2011). Any expert testimony by Dr. Arden and Walker does

not avoid the fact that the autopsy and DEA reports were admitted

into evidence at appellants’ trial. Moreover, we note but need not

decide whether Dr. Arden’s or Walker’s testimony qualifies as

proper expert opinion based on testimonial statements inadmissible

under the Confrontation Clause absent live in-court testimony by

the declarant. Other courts have held that an expert runs afoul the

Confrontation Clause when he “parrot[s] out-of-court testimonial

statements . . . directly to the jury in the guise of expert opinion.”

69

First, “solemn declaration[s] or affirmation[s] made for

the purpose of establishing or proving some fact” are

testimonial statements. Melendez-Diaz, 129 S. Ct. at 2532

(citation and quotation marks omitted). Put another way, “[a]

document created solely for an ‘evidentiary purpose,’ . . .

made in aid of a police investigation, ranks as testimonial.”

Bullcoming, slip op. at 14 (quoting Melendez-Diaz, 129 S. Ct.

at 2532). The Supreme Court concluded the certifications in

the laboratory report analyzing Bullcoming’s BAC were

testimonial because “a law-enforcement officer provided

seized evidence to a state laboratory required by law to assist

in police investigations,” the certifying forensic analyst

“tested the evidence and prepared a certificate concerning the

result of his analysis,” the certificate was formalized in a

signed document and headed a “report,” and the document

referenced court rules relating to the admissibility of certified

blood-alcohol analyses. Id. at 15.

United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009)

(citation and internal quotation marks omitted); see, e.g., Pablo,

625 F.3d at 1291-95. Here, the testimony by Dr. Arden and Walker

often relayed the contents of reports. For example, responding to

the prosecutor’s question about what “the report indicate[s]”

regarding soot or gunpowder marks on the arm of Anthony Dent,

Dr. Arden testified that “[the report] specifically says that . . . soot

or gunpowder tattooing . . . are mentioned as being absent.” June 4,

2002 AM Trial Tr. at 9. Likewise, examination relating to the DEA

reports typically consisted of Walker confirming a lab number on

an exhibit and stating the conclusion of the report regarding the

tested drugs. See, e.g., Oct. 23, 2002 PM Trial Tr. at 97, 98, 106,

111, 114, 118-20, 122-25.

70

Analogous circumstances make the autopsy reports here

testimonial. 16 The Office of the Medical Examiner is required

by D.C. Code § 5-1405(b)(11) to investigate “[d]eaths for

which the Metropolitan Police Department [“MPD”], or other

law enforcement agency, or the United States Attorney’s

Office requests, or a court orders investigation.” The autopsy

reports do not indicate whether such requests were made in

the instant case but the record shows that MPD homicide

detectives and officers from the Mobile Crimes Unit were

present at several autopsies. Another autopsy report was

supplemented with diagrams containing the notation: “Mobile

crime diagram (not [Medical Examiner] — use for info

only).” Still another report included a “Supervisor’s Review

Record” from the MPD Criminal Investigations Division

commenting: “Should have indictment re John Raynor for this

murder.” Law enforcement officers thus not only observed

the autopsies, a fact that would have signaled to the medical

examiner that the autopsy might bear on a criminal

investigation, they participated in the creation of reports.

Furthermore, the autopsy reports were formalized in signed

documents titled “reports.” These factors, combined with the

fact that each autopsy found the manner of death to be a

homicide caused by gunshot wounds, are “circumstances

which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.”

16

Certain duties imposed by the D.C. Code on the Office of the

Medical Examiner demonstrate, the government suggests, that

autopsy reports are business records not made for the purpose of

litigation. It is unnecessary to decide as a categorical matter

whether autopsy reports are testimonial, and, in any event, it is

doubtful that such an approach would comport with Supreme Court

precedent. See Melendez-Diaz, 129 S. Ct. at 2532; cf. Michigan v.

Bryant, 131 S. Ct. 1143, 1155-56 (2011).

71

Melendez-Diaz, 129 S. Ct. at 2532 (citation and quotation

marks omitted).

Second, as to the suggestion that the DEA reports

contained only “raw data,” the Supreme Court rejected the

same characterization that “Bullcoming’s true accuser . . . was

the [gas chromatography] machine, while [the] testing

analyst[’s] . . . role was that of mere scrivener.” Bullcoming,

slip op. at 10 (citation and internal quotation marks omitted).

The Court emphasized that the analyst “reported more than a

machine-generated number” when he

certified that he received Bullcoming’s blood sample

intact with the seal unbroken, that he checked to make

sure that the forensic report number and the sample

number “correspond[ed],” and that he performed on

Bullcoming’s sample a particular test, adhering to a

precise protocol. He further represented, by leaving

the “[r]emarks” section of the report blank, that no

“circumstance or condition . . . affect[ed] the integrity

of the sample or . . . the validity of the analysis.”

These representations, relating to past events and

human actions not revealed in raw, machine-produced

data, are meet for cross-examination.

Id. (alterations and ellipses in original) (internal citations

omitted). Likewise here, the forensic chemists who authored

the DEA reports made several representations, for example,

that they were trained DEA chemists who followed certain

procedures regarding the marking of containers and the

inspection of seals, and that the chemical reagents and/or

analytical instruments used were free from contamination and

operating properly. The record in this court submitted by the

parties does not indicate appellants had an opportunity to

cross-examine the forensic chemists about their

72

representations. And just as the Supreme Court concluded

that the performance of a blood-alcohol analysis using gas

chromatography was a “matter . . . not so simple or certain,”

id. at 4 n.1, and subject to “human error . . . at each step,” id.

at 4, the DEA drug analysis process requires forensic chemists

to weigh substances, make calculations, and choose the

correct “color test for a particular kind of exhibit,” Oct. 23,

2002 PM Trial Tr. at 130, a process also subject to human

error. Indeed, one type of test used by the DEA forensic

chemists involved gas chromatography. See id.

Non-structural constitutional error, such as violation of the

Confrontation Clause, requires vacation of a conviction only

where the error was not harmless beyond a reasonable doubt.

See Wilson, 605 F.3d at 1014 (citing Chapman, 386 U.S. at

24). As regards the autopsy reports, there was other evidence

at trial that the 31 murders occurred by gunshots fired by

members of the charged conspiracy. For example, there was

testimony by cooperating co-conspirators that Gray claimed

credit for shooting Anthony Dent and that Handy claimed

credit for murdering Demetrius Green, and there was

eyewitness testimony that Handy shot Richard Simmons.

Assuming error with respect to admission of the autopsy

reports, and thus not reaching the question left open in

Bullcoming, slip op. at 5-6 (Sotomayor, J., concurring in part),

we hold the error was harmless beyond a reasonable doubt.

With respect to those drug convictions dependent on a

specific weight and/or quality and quantity (Counts 126-138

of the superseding indictment), any improperly admitted DEA

reports, which were testimonial and within the ambit of the

requirements of the Confrontation Clause, may have caused

prejudicial error. The parties’ briefs could not address

Bullcoming, which was decided by the Supreme Court after

oral argument, and the parties did not address which specific

73

counts of the superseding indictment may or may not be

sustained on other grounds. Accordingly, we remand to the

district court to determine whether the admission of the DEA

reports was error under Bullcoming and which counts

underlying the judgment of conviction must be vacated, see

Smith, 640 F.3d at 364, because the government cannot

establish that the error was harmless beyond a reasonable

doubt.

X.

Under the Jencks Act, prosecutors must disclose “any

statement” of a government witness “which relates to the

subject matter as to which the witness has testified.” 18

U.S.C. § 3500(b). A statement includes “a written statement

made by said witness and signed or otherwise adopted by

him,” as well as any “substantially verbatim recital” of the

witness’s oral statements “recorded contemporaneously with

the making of such oral statement.” Id. § 3500(e). In the

course of its lengthy investigation of appellants, the

government created reports of many witness interviews.

Appellants argue that the district court abused its discretion

when it declined to review, in camera, all of the reports of

interviews of government witnesses who later testified at trial,

in order to determine whether any of those records contained

Jencks Act statements. We disagree.

A district court has an “affirmative duty” to “engage in an

adequate inquiry into the nature of the documents before

ruling against Jencks Act production.” United States v.

Stanfield, 360 F.3d 1346, 1355 (D.C. Cir. 2004). However, a

defendant cannot compel a district court judge to sift through

every record in the government’s possession merely by

speculating that somewhere in those records there might be

Jencks Act statements. Rather, the defense must raise a

74

“colorable claim” that a specific document or set of

documents contains Jencks statements. See, e.g., United

States v. Price, 542 F.3d 617, 621 (8th Cir. 2008); United

States v. Roseboro, 87 F.3d 642, 646 (4th Cir. 1996).

The interview reports in question here were written by law

enforcement officers, not by the witnesses themselves. Such

reports generally do not qualify as Jencks Act statements;

they are not usually a “substantially verbatim recital” of the

witness’s words or “adopted or approved by” the witness. Cf.

Price, 542 F.3d at 621; Roseboro, 87 F.3d at 646. Moreover,

even if the interviewer wrote down a few of the witness’s

exact words, there is no “substantially verbatim recital” if the

interviewer engaged in “substantial selection” in quoting the

witness. United States v. Donato, 99 F.3d 426, 433 (D.C. Cir.

1996) (quoting Palermo v. United States, 360 U.S. 343, 352-

53 (1959)). There is thus little reason to believe that the

interview reports in this case generally contained Jencks

statements, and no reason to insist that the district court

review every such report.

On two occasions, appellants cross-examined government

witnesses in an attempt to establish a colorable claim that

specific witnesses’ prior interviews had produced Jencks

statements. The closest appellants came was the following

exchange:

Defense: Do you recall whether or not while you were

speaking and the times when these people were

taking notes whether they asked you to slow

down so they could write something down that

you were saying?

Witness: No.

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Defense: Did you [sic] anyone ask you to repeat

yourself?

Witness: Probably so. I’m not sure.

A witness’s guess that an interviewer probably asked him to

repeat himself at some point during an interview does not

create anything more than speculation that the report of that

interview is a “substantially verbatim recital” of the interview.

Cf. Roseboro, 87 F.3d at 646. Under those circumstances, the

district court did not abuse its discretion in declining to

review the resulting report, much less every interview report

created during the investigation.

XI.

At trial, the government elicited testimony from two

former members of the Moore and Gray conspiracy that they

had converted to Islam and that their religious conversion

motivated them to testify for the prosecution. On cross-

examination, the defense attempted to demonstrate that the

conversions of those two witnesses were a sham. The defense

also questioned the legitimacy of many other government

witnesses’ religious beliefs, even though the government had

not raised the issue on direct examination of those witnesses.

The government in turn sought to defend the genuine nature

of its witnesses’ religious beliefs.

Appellants contend that the government’s elicitation of

testimony with respect to its witnesses’ faith violated Federal

Rule of Evidence 610. That rule states: “Evidence of the

beliefs or opinions of a witness on matters of religion is not

admissible for the purpose of showing that by reason of their

nature the witness’ credibility is impaired or enhanced.”

76

The government responds that the testimony of the two

witnesses did not fall within Rule 610 because the evidence

was offered “for the purpose of showing interest or bias

because of” religious beliefs. FED. R. EVID. 610 advisory

committee’s notes. According to the government, the

witnesses’ religious conversion refuted an accusation of bias

— namely, the accusation that the witnesses were testifying

solely to receive favorable plea agreements. The government

thus argues that this testimony went to the witnesses’ motive,

not their credibility.

We need not decide which side has the better argument,

because even assuming arguendo that there was error in

allowing this testimony, the error was harmless. See FED. R.

CRIM. P. 52(a). The government elicited very little religious

testimony of its own accord. It made no mention of that

testimony in opening or closing; it never urged the jury to

credit its witnesses on account of their faith. Cf. United States

v. Spinner, 152 F.3d 950, 961-62 (D.C. Cir. 1998). Whatever

slight influence those two witnesses’ religious conversions

could have had on the jury is insignificant alongside the

overwhelming evidence of appellants’ guilt in this case. See

Kotteakos v. United States, 328 U.S. 750, 765, 776 (1946).

Moreover, the defense thoroughly probed the issue of

religious faith not only with the two witnesses who discussed

their religion on direct examination, but with many others as

well. Appellants admit that they did so both to impugn the

government witnesses’ credibility and to support their own

claim that the government witnesses used Friday prison

prayer services to coordinate false testimony against

appellants. On this record, the defense’s extensive cross-

examination on this topic cannot be used to transform a

government error (assuming error) that was a relatively minor

77

part of the trial into a reversible error. See Lurk v. United

States, 296 F.2d 360, 361 (D.C. Cir. 1961).

XII.

Nunn maintains that the district court erred in denying his

motion for a new trial. See United States v. Gray, 292 F.

Supp. 2d 71, 91-94 (D.D.C. 2003). Although the motion

raised four issues, this part addresses only Nunn’s contention

that the testimony of Steve Graham was procured by the

government in violation of the federal bribery statute, 18

U.S.C. § 201(c)(2), which provides that “[w]hoever . . . gives,

offers, or promises anything of value to any person, for or

because of the testimony under oath or affirmation given or to

be given by such person as a witness upon a trial . . . shall be

fined . . . or imprisoned for not more than two years, or

both.” 17 Graham testified that Nunn was Gray’s drug supplier

and described two drug transactions between Gray and Nunn.

See Nov. 4, 2002 AM Trial Tr. at 14-26. Our review of the

district court’s denial of a new trial is for abuse of discretion.

United States v. Johnson, 519 F.3d 478, 487 (D.C. Cir. 2008).

Graham was indicted for participating in the charged drug

and RICO conspiracies, but his trial was severed from that of

the other co-conspirators. After refusing offers by the

government to enter into a plea agreement and cooperate with

the government, he was convicted by a jury of conspiracy to

distribute heroin or cocaine base and possession with intent to

distribute heroin. The district court sentenced Graham to two

concurrent 210-month terms of incarceration, followed by two

17

Nunn’s claims regarding Federal Rule of Evidence 404(b)

and severance pursuant to Federal Rule of Criminal Procedure 14

are addressed in Parts V and XXII, respectively.

78

concurrent sentences of five years’ incarceration, and three

years of supervised release. See United States v. Graham,

317 F.3d 262, 265-66 (D.C. Cir. 2003). More than a year

after sentencing, this court in December 2001 appointed new

counsel to represent Graham on appeal. New counsel

explained the benefits of cooperating with the government

and the terms of such cooperation, something that Graham

claims his trial counsel failed to do. See Nov. 6, 2002 AM

Trial Tr. at 66-67, 70.

In March 2002, Graham contacted the prosecutor’s office

to express his desire to cooperate. On October 11, 2002, the

government and Graham entered into an agreement whereby

Graham would cooperate fully with the government and

testify truthfully at appellants’ trial. The agreement stipulated

that “the usefulness of the information supplied . . . could not

have reasonably been anticipated by [Graham] until more than

a year after his sentencing and that [Graham] promptly

provided information to the government after its utility was

reasonably apparent to him.” Gray, 292 F. Supp. 2d at 92.

This language tracks an amendment now found in Federal

Rule of Criminal Procedure 35(b)(2)(C), 18 effective

18

Federal Rule of Criminal Procedure 35(b)(2)(C) provides:

(2) Upon the government’s motion made more than one

year after sentencing, the court may reduce a sentence if

the defendant’s substantial assistance involved:

***

(C) information the usefulness of which could not

reasonably have been anticipated by the defendant until

more than one year after sentencing and which was

promptly provided to the government after its

usefulness was reasonably apparent to the defendant.

79

December 2002, providing an additional basis for granting a

sentencing reduction based on a defendant’s substantial

assistance to the government. The agreement also

memorialized the government’s intention to file a Rule 35

motion. See Gray, 292 F. Supp. 2d at 92.

In Nunn’s view, Graham cooperated with the government

and testified against appellants because the government

agreed to file an untimely and improper Rule 35(b) motion on

his behalf. This agreement constituted, in Nunn’s words, a

“Faustian bargain,” Appellants’ Br. at 194, because it

represented that Graham realized the importance of the

information he possessed only upon appointment of new

appellate counsel more than one year after sentencing, when,

according to Nunn, Graham possessed this information at the

time of his arrest and knew of its potential value. Nunn thus

contends that the government, aware that Graham was

ineligible for a Rule 35(b)(2)(C) sentence reduction,

nonetheless unlawfully offered Graham leniency in exchange

for his cooperation.

United States v. Ramsey, 165 F.3d 980 (D.C. Cir. 1999), is

controlling. Ramsey was convicted of a drug crime based on

testimony by an informant named Fierro. Ramsey challenged

his conviction on the ground that the federal bribery statute

made it unlawful for the government to offer Fierro leniency

in exchange for his cooperation and testimony. This court

affirmed, holding that the bribery statute was not by its terms

applicable to the United States when read in conjunction with

the Dictionary Act, 1 U.S.C. § 1, and reasoned that a contrary

The advisory committee notes that “[w]hat constitutes ‘prompt’

notification will depend on the circumstances of the case.” FED. R.

CRIM. P. 35 advisory committee’s note to 2002 amendments.

80

conclusion would deprive the federal government of its

longstanding ability to plea bargain, thereby creating absurd

results. See Ramsey, 165 F.3d at 986-91. As additional

justification, this court concluded that “even if federal

prosecutors were subject to [the federal bribery statute], that

fact would not justify excluding Fierro’s testimony” under the

exclusionary rule because Congress had prescribed only a

monetary fine and imprisonment as punishments. Id. at 991.

Counsel for Nunn conceded at oral argument that “the

cases are legion[] that the government is allowed to exchange

leniency for testimony.” Oral Arg. Tr. at 55. Even if the

federal bribery statute were applicable, a violation would not

change the course of Nunn’s trial because the exclusionary

rule would not operate to prevent the government from

eliciting Graham’s testimony. United States v. Singleton, 165

F.3d 1297 (10th Cir. 1999) (en banc), is not to the contrary.

Nunn relies on a concurring opinion for the proposition that

“[p]rosecutors may offer only those incentives that Congress

has approved, and may bargain and execute agreements only

within the narrow, specific procedures that Congress and the

courts have articulated.” Id. at 1308 (Lucero, J., concurring).

The majority likewise stated: “Our conclusion in no way

permits an agent of the government to step beyond the limits

of his or her office to make an offer to a witness other than

one traditionally exercised by the sovereign.” Id. at 1302

(majority opinion). A motion under Rule 35 is functionally

little different from the plea bargain at issue in Singleton and

the leniency afforded to the informant in Ramsey, save for the

timing. Cf. United States v. Ridge, 329 F.3d 535, 541 (6th

Cir. 2003); United States v. Vargas-Deleon, 124 F. App’x

854, 858-59 (5th Cir. 2005). Because the district court acted

within its discretion in crediting Graham’s stipulation that he

realized the usefulness of the information he possessed only

upon the explanation by new appellate counsel, the

81

government’s Rule 35 motion meets the Singleton test, even

assuming arguendo its applicability here.

Accordingly, we hold that the district court did not abuse

its discretion in denying Nunn’s motion for a new trial motion

based on Graham’s testimony.

XIII.

Gray’s contention that the district court abused its

discretion in denying his request for a destruction of evidence

instruction is manifestly without merit. This court has no

authority to depart from Arizona v. Youngblood, 488 U.S. 51

(1988), requiring bad faith destruction, see Agostini v. Felton,

521 U.S. 203, 237 (1997), a showing Gray concedes he

cannot make, see Appellants’ Br. at 204.

XIV.

Appellants requested that the district court instruct the

jury on its theory that the government demonstrated, at most,

that they engaged in multiple independent conspiracies, not a

single joint conspiracy. Appellants submitted several

proposed instructions to the court on this theory; the district

court refused to give appellants’ proposed instructions, four of

which are now at issue on appeal. See Nov. 20, 2002 PM

Trial Tr. at 47-56.

We have held that a “theory-of-defense instruction is in

order if there is ‘sufficient evidence from which a reasonable

jury could find’ for the defendant on his theory.” United

States v. Hurt, 527 F.3d 1347, 1351 (D.C. Cir. 2008)

(quoting United States v. Glover, 153 F.3d 749, 754 (D.C.

Cir. 1998)). However, we have also made clear that a failure

to provide a requested defense instruction is not reversible

82

error unless the instruction: “(1) is substantively correct; (2)

was not substantially covered in the charge actually delivered

to the jury; and (3) concerns an important point in the trial so

that the failure to give it seriously impaired the defendant’s

ability to effectively present a given defense.” United States

v. Taylor, 997 F.2d 1551, 1558 (D.C. Cir. 1993) (quoting

United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981))

(internal quotation marks omitted).

No one disputes that appellants were entitled to an

instruction on their theory that the government had proven, at

most, multiple conspiracies rather than a single conspiracy.

Indeed the district court gave such an instruction:

The defendants contend that the government’s proof at

trial is at variance from the conspiracy charged in

Count One of the indictment; that is, that the evidence

presented at trial, if believed, would constitute

multiple conspiracies rather than a single overall

conspiracy. Whether a single conspiracy, multiple

conspiracies or no conspiracy at all existed is for you

to decide. . . . Proof of several separate conspiracies is

not proof of the single overall conspiracy charged in

the indictment. What you must determine is whether

the single conspiracy as charged in Count One existed

between two or more conspirators. If you find that no

such conspiracy existed, you must acquit the

defendants of this charge. If, however, you find the

government has proved beyond a reasonable doubt

that the defendants were involved at any point during

the period charged in the indictment in an integrated,

ongoing, common effort to distribute controlled

substances, then you may find them guilty of the

single conspiracy charged in Count One. In making

this determination, you should consider whether the

83

conspirators share a common goal . . . . You may also

consider the extent to which members of the

conspiracy depended on one another to accomplish the

goal of narcotics distribution, the overlap of

participants in the various operations of the

conspiracy, and the quality, frequency, and duration of

each conspirator’s transactions.

Dec. 9, 2002 AM Trial Tr. at 108-10. Rather, the question

here is whether the court’s refusal to provide the specific

instructions requested by appellants constitutes reversible

error. We hold that it did not.

Appellants requested the following instructions:

Instruction 3. To determine whether the evidence supports

a single conspiracy as opposed to multiple conspiracies,

you must examine whether the defendants shared a

common goal, any interdependence among the

participants, and any overlap among the participants in the

allegedly separate conspiracies. The overlap requirement

is satisfied only if the main figures in the alleged

conspiracy are involved in all of the conspiracy’s alleged

scheme.

Instruction 4. In this case, the government alleges what is

known as a ‘hub and spoke’ conspiracy. The government

alleges that Mr. Gray and Mr. Moore were at the hub of

the conspiracy, and that the other defendants, in addition

to other conspirators, were the ‘spokes.’ However, in

order to prove such a conspiracy, it must be shown that

there is a direct conspiratorial interrelationship, also

known as ‘interdependence,’ among those on the ‘spokes’

of the conspiracy, in addition to their relationship to those

at the hub.

84

Instruction 5. In order for the defendants to be convicted

of Count One, the evidence must demonstrate beyond a

reasonable doubt that each defendant knew or had reason

to know the scope of the distribution and retail

organization involved, and had reason to believe that their

own benefits derived from the operation [were] dependent

upon the success of the entire venture.

Instruction 6. A single conspiracy exists if there is one

overall agreement among various parties to perform

different functions in order to carry out objectives of [the]

conspiracy, while multiple conspiracies exist if each of the

conspirators’ agreements has its own end and constitutes

an end in itself.

We cannot conclude that the failure to provide any of the

proposed instructions “seriously impaired the defendant’s

ability to effectively present a given defense.” Taylor, 997

F.2d at 1558. In light of the district court’s comprehensive

instructions to the jury about the defense’s multiple-

conspiracies theory, which mentioned all of the factors

relevant to the jury’s determination, we find that appellants

were able to effectively present their defense.

XV.

Count 2 charged Moore with engaging in a continuing

criminal enterprise (“CCE”), in violation of 21 U.S.C. § 848.

To convict under § 848, the government must prove that the

defendant committed: “1) a felony violation of the federal

narcotics law; 2) as part of a continuing series of violations;

3) in concert with five or more persons; 4) for whom the

defendant is an organizer or supervisor; 5) from which he

derives substantial income or resources.” United States v.

Hoyle, 122 F.3d 48, 50 (D.C. Cir. 1997) (citation and

85

quotation marks omitted). A “continuing series of

violations,” 21 U.S.C. § 848(c)(2), requires participation in

three or more predicate offenses, one of which may be a drug

conspiracy charged under 21 U.S.C. § 846. See United States

v. Harris, 959 F.2d 246, 252-54 (D.C. Cir. 1992), overruled

on other grounds, Bailey v. United States, 516 U.S. 137

(1995); see also Dec. 9, 2002 AM Trial Tr. at 120. The jury

convicted Moore upon finding seven proven predicate

offenses. Moore challenges his CCE conviction on the

ground that there was insufficient evidence to support the

jury’s finding of three or more predicate offenses. This court

“must accept the jury’s guilty verdict” where a rational trier of

fact could have reasonably found that Moore committed at

least three predicate offenses. United States v. Dykes, 406

F.3d 717, 721 (D.C. Cir. 2005).

The predicate offenses found by the jury included (1) the

drug conspiracy charged in Count 1, see 21 U.S.C. § 846; (2)

Gray’s possession with intent to distribute cocaine base on

October 5, 1996 (Count 1, Overt Act 78); and (3) Raynor’s

possession with intent to distribute heroin on February 8,

1997 (Count 1, Overt Act 90). The latter two were

attributable to Moore as a co-conspirator pursuant to

Pinkerton v. United States, 328 U.S. 640, 645-48 (1946): “As

long as a substantive offense was done in furtherance of the

conspiracy, and was reasonably foreseeable as a ‘necessary or

natural consequence of the unlawful agreement,’ then a

conspirator will be held vicar

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